Washington Supreme Court Holds School Districts May Be Strictly Liable for Employees’ Discrimination Under the WLAD

In deciding two certified questions from the Western District of Washington regarding the meaning of the Washington Law Against Discrimination (“WLAD”), chapter 49.60 RCW, the Washington Supreme Court unanimously held in W.H. et al. v. Olympia Sch. Dist., No. 97630-9 (Jun. 18, 2020) that: (1) a school district may be subject to strict liability for discrimination in places of public accommodation by its employees in violation of the WLAD, and (2) under the WLAD, discrimination can encompass intentional sexual misconduct, including physical abuse and assault.
The Plaintiffs sued the Olympia School District in the Western District of Washington in 2016, in connection with the abuse of minor passengers on a school by a bus driver employed by the school district. In response to the Supreme Court’s decision in Floeting v. Group Health Cooperative, 192 Wn.2d 848, 434 P.3d 39 (2019), the Plaintiffs successfully moved to amend their complaint to include a claim under the WLAD. The School District then moved to certify three questions regarding the WLAD to the Supreme Court. The federal court certified two of the three questions., as follows: (1) “May a school district be subject to strict liability for discrimination by its employees in violation of WLAD?,” and (2) “If a school district may be strictly liable for its employees’ discrimination under the WLAD, does ‘discrimination’ for the purposes of this cause of action encompass intentional sexual misconduct, including physical abuse and assault?”
The Court answered in the affirmative as to both questions. The court first examined the statutory language of RCW 49.60.215(14), which makes it “an unfair practice for any person or agent or employee to commit” a discriminatory act “in any place of public…accommodation.” The Court then examined its recent decision in Floeting, 192 Wn.2d 848. In Floeting, the Court held that employers are strictly liable for the actions of their employees under RCW 49.60.215. Id. at 861. With respect to the first question, the Court based its ruling on the WLAD’s definition of “person” set forth in RCW 49.60.040(19). The definition included any political or civil subdivision of the state. As RCW 28A.315.005(2) states that local school districts are political subdivision of the state, the Court found the chain of logic clear. Thus, the Court held that a school district is subject to strict liability lawsuits for discrimination in places of public accommodation by its employees in violation of the WLAD. In doing so, the Court rejected the School District’s argument that it was protected by a statutory waiver of sovereign immunity, as enacted by legislation in the 1960s, finding instead that “the WLAD clearly abrogated that sovereign immunity when it created a private cause of action, permitting suit in court, for discrimination in places of public accommodation and included public educational facilities in its definition of places of public accommodation.”
With respect to the second question certified to the Court, the Court again looked to its recent rulings in Floeting. In Floeting, the Court held that sexual harassment is a form of sex discrimination. 192 Wn.2d at 853; see also id. at 862-63 (Madsen, J., dissenting) (agreeing that “sexual harassment…is a form of sex discrimination” (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 405, 693 P.2d 708 (1985))). In answering the second certified question in the affirmative, the Court found that because sexual harassment is a form of sex discrimination, so, too is intentional sexual misconduct, including physical abuse and assault.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.

Washington Supreme Court Rules Joint And Several Liability Is Preserved When A Defendant Is Vicariously Liable

In a 5-4 split decision, the Washington Supreme Court held in Afoa v. Port of Seattle, No. 94525-0 (July 19, 2018) that RCW 4.22.070.(1)(a) preserves joint and several liability when a defendant is vicariously liable for another’s fault, but whether vicarious liability exists is a factual question.

The Plaintiff, Brandon Apela Afoa, commenced this action against the Port of Seattle for injuries sustained during his employment with an independent contractor operating at Sea-Tac International Airport. At trial, the Port asserted an empty chair defense against four non-party airlines. The jury found the Port retained control over Afoa’s employer’s work, which gave rise to a duty of care to Afoa. The $40 Million verdict was apportioned by the jury as follows: 0.2% to Plaintiff, 25% to the Port, and 74.8% split equally to the four airlines. Plaintiff appealed alleging the Port was vicariously liable for the airlines’ portion of the damages because it had a nondelegable duty to provide a safe workplace.

The Court answered in the negative. The Court found that the meaning of RCW 4.22.070 is clear and unambiguous in that it generally abolishes joint and several liability for concurrent negligence.  In examining the legislative intent behind RCW 4.22.070, the Court stated that liability for breach of a nondelegable duty does not undermine the fault allocation under the statute. The Court noted that while the dissent correctly recognized an exception under the statute which would allow a nondelegable duty to result in vicarious liability for an independent contractor’s fault, the Court declined to apply this exception because the jury did not make a factual finding that that the Port retained control over the airlines’ work. The Court held that “[A]n entity that delegates its nondelegable duty will be vicariously liable for the negligence of the entity subject to its delegation, but an entity’s nondelegable duty cannot substitute for a factual determination of vicarious liability when RCW 4.22.070(1) clearly requires apportionment to “every entity which caused the claimant’s damages.””

Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.