Strict Liability for Operators of Places of Public Accommodation Under the Washington Law Against Discrimination

In a landmark decision (01/31/2019), the Washington State Supreme Court held that employers are strictly liable under the Washington Law Against Discrimination for their employee's discriminatory conduct towards a customer in a place of public accommodation.

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. 

A place of public accommodation includes places where charges are made for admission like a sports stadium and theatre, places where medical services are made available like a hospital, and places  where the public gathers for amusement, recreation, or public purposes.  

The WLAD provides for 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). 

In order to establish discrimination under the WLAD in a public accommodation scenario, 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. See Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319 (1996); see also Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 525, 20 P.3d 447 (2001).

Our State's High Court wrote:

The "WLAD protects the customer's "full enjoyment" of the services and privileges offered in public accommodations.  RCW 49.60.030(1)(b).  WLAD's broad definition of "full enjoyment" extends beyond denial of service to include liability for mistreatment that makes a person feel "not welcome, accepted, desired, or solicited."  RCW 49.60.040(14).  Denial or deprivation of services on the basis of one's protected class is an affront to personal dignity.  See Obergefell v. Hodges, _ U.S. _, 135 S. Ct. 2584, 2604, 2607-08, 192 L. Ed. 2d 609 (2015) (denial of marriage equality works a "grave and continuing harm").  The "fundamental object" of laws banning discrimination in public accommodations is "to vindicate 'the deprivation of personal dignity that surely accompanies denials of equal access to public establishments."' Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964) (quoting S. REP. No. 88-872, at 16-17 (1964)).

WLAD makes it unlawful for "any person or the person's agent or employee to commit an act" of, among other things, discrimination in a place of public accommodation.  RCW 49.60.215.  This provision imposes direct liability on employers for the discriminatory conduct of their agents and employees."

Thus, the Court held that the employer will be strictly liable if its employee caused the harm prohibited by the WLAD, even if the employer entity did not participate in the discrimination and was not negligent in training or supervising its employees. 

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