While the US Supreme Court issued its important decision in the DACA case today, holding the administration’s decision to end the program was arbitrary and capricious, the highest court in the other Washington also released an important decision. In a case involving the Washington Law Against Discrimination (WLAD), the Washington Supreme Court held today that (1) school districts can be subject to strict liability for their employees’ acts of discrimination in places of public accommodation, and (2) the definition of discrimination can encompass intentional sexual misconduct, physical abuse, and assault.
This is an incredibly sad case. A school bus driver in the Olympia School District sexually abused multiple children, including the plaintiffs in this case. The plaintiffs sued, alleging among other things, a violation of the WLAD because the sexual abuse amounted to discrimination. This case came to the Washington Supreme Court via certification from the US District Court for the Western District of Washington. The district court certified two questions: (1) is a school district subject to strict liability for the discrimination of its employees in violation of the WLAD, and (2) does discrimination as used in the WLAD encompass intentional sexual misconduct, including physical abuse and assault?
The court starts with a brief but fascinating history of the laws prohibiting discrimination in public accommodation in Washington. For example, did you know that Washington criminalized discrimination in places of public accommodation on the basis of race or national origin in March 1890, just months after we became a state? I sure didn’t.
Diving into the analysis, the court noted that its decision from 2019 in Floeting v. Group Health Cooperative directly answers the first question. That case established that the WLAD imposes strict liability on employers for the actions of their employees in public accommodation. The defendant in this case expressly declined to ask the court to overturn the decision; instead it argued that strict liability should not apply to school districts. But the court pointed to statutory language applying the WLAD to “any political or civil subdivision of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.” Local school districts are statutorily defined as political subdivisions of the state. So the court easily answers the first question yes; strict liability imposed on employers in the WLAD applies to school districts.
The court then turned to whether discrimination encompassed the conduct at issue here. Once again, the court pointed to its decision in Floeting. In that case, a Group Health employee sexually harassed a patient. The court there agreed that sexual harassment was a form of sex discrimination. And because sexual harassment constitutes sex discrimination, the court agreed that logically intentional sexual misconduct, including physical abuse and assault, also constitutes sex discrimination.
The defendant argued that the plaintiffs could not make a claim for sex discrimination in this particular case because the bus driver sexually assaulted both boys and girls. In other words, the defendant argued, this case is about the age of the victims, not their sex. The court responded by noting that argument goes beyond the questions certified to it by the district court. The question was simply whether intentional sexual misconduct can be considered discrimination. The answer to that question is clearly yes.
This was a 9-0 decision. In Floeting, there was a dissent by Justice Madsen, but she joined her colleagues today in this decision, no doubt due to stare decisis.