Floeting v. Grp. Health Coop.

• Decision Date: 31 January 2019
• Docket Number: No. 95205-1,95205-1
• Citation: 434 P.3d 39,192 Wash.2d 848
• Court: Washington Supreme Court
• Parties: Christopher H. FLOETING, Respondent, v. GROUP HEALTH COOPERATIVE, Petitioner.

192 Wash.2d 848

434 P.3d 39

Christopher H. FLOETING, Respondent,

v.GROUP HEALTH COOPERATIVE, Petitioner.

No. 95205-1

Supreme Court of Washington.

Filed JANUARY 31, 2019

Oral Argument Date: June 28, 2018

Medora Marisseau, Celeste Mountain Monroe, Karr Tuttle Campbell, 701 5th Ave. Ste. 3300, Seattle, WA, 98104-7055, for Petitioner.

Hank L. Balson, Budge & Heipt, PLLC, 705 2nd Ave. Ste. 910, Seattle, WA, 98104-1716, for Respondent.

Annika Michelle Scharosch, Eastern Washington University, 211 Tawanka, Cheney, WA, 99004, Aileen B. Miller, WA Attorney General's Office, EDU, Po Box 40100, Olympia, WA, 98504-0100, Education Division A.G. Office, Attorney at Law, 1125 Washington Street Se, P. O. Box 40100, Olympia, WA, 98504-0100, for Amici Curiae on behalf of University of Washington, Washington State University, Central Washington University, Eastern Washington University, Western Washington University, The Evergreen State College.

Patricio Antonio Marquez, Washington Attorney General's Office, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Amicus Curiae on behalf of Attorney General of Washington.

Lindsay L. Halm, Schroeter Goldmark Bender, 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1657, Sara Lyle Ainsworth, SIA Legal Team, Po Box 1019, Amherst, MA, 01004-1019, Andrew J.D. Kashyap, Attorney at Law, 1226 8th Pl W., Seattle, WA, 98119-3443, Robert S. Chang, Seattle University School of Law, 901 12th Ave., Seattle, WA, 98122-4411, for Amici Curiae on behalf of Legal Voice, Fred T. Korematsu Center for Law and Equality.

González, J.¶ 1 The Washington Law Against Discrimination (WLAD) makes it unlawful for "any person or the person’s agent or employee to commit an act [of] discrimination ... in any place of public ... accommodation." RCW 49.60.215. Christopher Floeting alleges that a Group Health Cooperative employee repeatedly sexually harassed him while he was seeking medical treatment. Sexual harassment is a form of sex discrimination. Group Health argues that we should import workplace sexual harassment doctrines into the public accommodations context, categorically limiting employer liability. We decline to do so and affirm.

BACKGROUND

¶ 2 Floeting had been a member and patient of Group Health, a nonprofit health care system, for over 35 years. Group Health is a place of public accommodation. Floeting alleges that beginning in July 2012, he was repeatedly sexually harassed by a Group Health employee during his regularly scheduled medical appointments. He filed a complaint with Group Health, and Group Health investigated. Two weeks later, Group Health terminated the employee.

¶ 3 Floeting sued Group Health for the unwelcome and offensive sexual conduct he experienced. The trial court dismissed his claim on summary judgment, presumably pursuant to Group Health’s argument that the employment discrimination standard applies.¹ The Court of Appeals reversed. Floeting v. Grp. Health Coop., 200 Wash. App. 758, 403 P.3d 559 (2017). We granted review. Floeting v. Grp. Health Coop., 190 Wash.2d 1007, 409 P.3d 1063 (2018).

ANALYSIS

¶ 4 Group Health challenges employer liability for the discriminatory actions of its agents and employees and challenges the legal test used by the Court of Appeals. We decline to import doctrines developed for the employment context into the public accommodations context. We hold that under the plain language of WLAD, employers are directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.

¶ 5 Since both of Group Health’s challenges present questions of law, our review is de novo. Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wash.2d 224, 239, 59 P.3d 655 (2002) (citing State v. Keller, 143 Wash.2d 267, 276, 19 P.3d 1030 (2001) ). When reviewing a statute, the court will give effect to the statute’s plain language. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002). In determining if the statute is plain, we will consider the ordinary meaning of words, basic rules of grammar, and statutory context. Citizens All. for Prop. Rights Legal Fund v. San Juan County , 184 Wash.2d 428, 435, 359 P.3d 753 (2015).

¶ 6 The legislature has declared "that practices of discrimination ... threaten[ ] not only the rights and proper privileges of [Washington’s] inhabitants but menace[ ] the institutions and foundation of a free democratic state." RCW 49.60.010. The legislature has also directed us to liberally construe WLAD to eradicate discrimination, including discrimination in places of public accommodation. RCW 49.60.010, .020; see also Jin Zhu v. N. Cent. Educ. Serv.Dist.-ESD 171, 189 Wash.2d 607, 614, 404 P.3d 504 (2017) (quoting Marquis v. City of Spokane, 130 Wash.2d 97, 108, 922 P.2d 43 (1996) ).

¶ 7 Under RCW 49.60.030(l)(b), WLAD secures the right to "full enjoyment" of any place of public accommodation, including the right to purchase any service or commodity sold by any place of public accommodation "without acts directly or indirectly causing persons of [a protected class] to be treated as not welcome, accepted, desired, or solicited." See RCW 49.60.040(14). Similarly, WLAD prohibits "any person or the person’s agent or employee [from committing] an act which directly or indirectly results in any distinction, restriction, or discrimination" based on a person’s membership in a protected class. RCW 49.60.215 (emphasis added). This broad standard focuses the liability inquiry on whether actions resulted in discrimination, not whether the proprietor of a place of public accommodation intended to discriminate.

¶ 8 Floeting alleges a Group Health employee sexually harassed him. Sexual harassment is a form of sex discrimination, which we analyze like other forms of discrimination in places of public accommodation. See Dana E. Blackman, Refusal To Dispense Emergency Contraception in Washington State: An Act of Conscience or Unlawful Sex Discrimination? , 14 MICH. J. GENDER & L. 59, 72 (2007) ("absent distinguishing factors, the various protected classes should be treated similarly under the law"); cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).

¶ 9 More than twenty years ago, we set forth the standard for establishing a prima facie case of discrimination in a place of public accommodation under RCW 49.60.215. See Fell v. Spokane Transit Auth., 128 Wash.2d 618, 637, 911 P.2d 1319 (1996).² Fell established that in order to make a prima facie case of discrimination under RCW 49.60.215, a plaintiff must prove that (1) the plaintiff is a member of a protected class, (2) the defendant’s establishment is a place of public accommodation, (3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside that class, and (4) the plaintiff’s protected status was a substantial factor that caused the discrimination. Id. ; see also Demelash v. Ross Stores, Inc., 105 Wash. App. 508, 525, 20 P.3d 447 (2001) (applying same analytical framework). In all the time since, the legislature has not seen fit to amend WLAD to impose a different standard on claims of discrimination in places of public accommodation.

¶ 10 Instead of the traditional public accommodation claims test, Group Health argues that the framework developed to analyze sex discrimination committed by an employee against a coworker should apply. In the employment context, a plaintiff alleging workplace sexual harassment must show (1) the conduct was unwelcome, (2) the conduct was because of sex, (3) the conduct affected the terms or conditions of employment, and (4) the harassment can be imputed to the employer because the employer (i) authorized, knew of, or should have known of the harassment and (ii) failed to take reasonably prompt and corrective action. Glasgow v. Ga.-Pac. Corp., 103 Wash.2d 401, 406-07, 693 P.2d 708 (1985) (holding sexual harassment deprived plaintiff of a workplace free of sex discrimination).

¶ 11 Group Health argues that the Glasgow employment discrimination standard "applies seamlessly" and therefore it should apply. Pet. for Review at 10. It also suggests that if we do not apply the agency principles articulated in Glasgow, we would be creating a "double standard" whereby sexual harassment claims are treated differently in different contexts. Id. at 14-15. Group Health also argues that the Court of Appeals incorrectly imposed a standard that rejects consideration of severity or pervasiveness of the treatment. Id. at 15.

¶ 12 But we treat employment discrimination claims differently from public accommodation discrimination claims because WLAD treats them differently. An employee alleging employment discrimination must show that the misconduct affected the "terms or conditions of [their] employment." RCW 49.60.180(3) ; Glasgow, 103 Wash.2d at 405-06, 693 P.2d 708. The employment discrimination statute is limited to unfair practices by an "employer" by operation of the language"It is an unfair practice for any employer[ ] [t]o ..." RCW 49.60.180. In contrast, WLAD provisions prohibiting discrimination in a public accommodation do not limit themselves to the "terms or conditions" of a public accommodation. See RCW 49.60.215. Discrimination by "any person or the person’s agent or employee" is an unfair practice in a public accommodation, id. ; in this context, the person subject to WLAD broadly includes, among others, individuals, corporations, owners, proprietors, managers, and employees. RCW 49.60.040(19). Floeting’s claim is more of a consumer claim than a claim between an employee and employer, and his claim is not limited by the employment discrimination statute.

¶ 13 WLAD protects the customer’s "full enjoyment" of the services and privileges offered in public accommodations. RCW...