Washington Supreme Court Finds that School Districts are Strictly Liable for their Employees’ Conduct under the WLAD and that Intentional Sexual Misconduct Constitutes Discrimination for Purposes of the WLAD

From the desk of Thomas McCurdy: Washington has a track record of working to criminalize discrimination in public spaces.  Since the early 1900s, the state has been developing legislation prohibiting discrimination on a number of bases – the list of which continues to grow to this very day.  In 1957, the Washington legislature enacted the Washington Law Against Discrimination (WLAD) which made discrimination based on race, creed, color, or national origin in a place of public accommodation an actionable offense.  In 1973, the legislature added an express provision to the statutory scheme which allowed for a private right of action for violations of the WLAD.  Since then, the WLAD has been frequently applied to prevent injustices and discrimination, and in the following case, the Washington Supreme Court seized the opportunity to further broaden its scope. 

Case Pointer: In this case, the Washington Supreme Court responded to two certified questions received from the U.S. District Court for the Western District of Washington.  Specifically, the District Court asked for guidance on the effect and meaning of the WLAD in connection with an underlying case involving the sexual misconduct committed by Gary Shafer, a school bus driver for the Olympia School District, against at least two minors during the course of his employment.  The questions certified to the Washington Supreme Court were: 

1. May a school district be subject to strict liability for discrimination by its employees in violation of the WLAD?
2.  If yes, does “discrimination” for the purposes of this cause of action encompass intentional sexual misconduct, including physical abuse and assault? 

Naturally, the Supreme Court answered yes to each question, thereby increasing the reach of the WLAD and the liability able to be imposed against school districts for the actions of their employees thereunder. 

W.H. v. Olympia Sch. Dist., 2020 Wash. LEXIS 339 (June 18, 2020). 

This case is the result of a series of events which many have undoubtedly seen circulating in and around news media outlets in the Olympia, Washington area.  Gary Shafer, a school bus driver for the Olympia School District, was convicted of molesting a number of minors during the course of his employment.  Shafer was sentenced to more than fourteen years in prison, but the tsunamis created by his misconduct did not disappear from society as quickly as he did.  Indeed, civil litigation against the Olympia School District itself persisted, as parents of the minor victims alleged that the District concealed information relating to Shafer’s misconduct.  As part of that litigation, occurring in federal court due to the presence of an enforcement of rights created by federal statute, the District Court certified two questions to the Washington Supreme Court in an attempt to determine the scope of the WLAD with regard to the type of liability it imposes on the School District as well as the conduct included in its definition (and specifically whether or not Shafer’s conduct fell within it). 

As to the first question – whether a school district can be subject to strict liability for discrimination by its employees who violate the WLAD, the Court said “yes.”  In so holding, the Court relied heavily on its previous holding in the case of Floeting v. Group Health Cooperative, 192 Wn.2d 848 (2019) wherein it concluded that employers are indeed strictly liable for the conduct of their employees pursuant to RCW 49.60.215 (“Unfair practices of [public places]”).  The Court stated that the inquiry as to an employer’s liability for their employee’s actions under RCW 49.60.215 is not like a typical negligence claim where foreseeability is a required element.  The WLAD imposes liability for discriminatory acts “regardless of the culpability of the actor.”  In other words, employers are directly liable regardless of whether they were themselves at fault. 

The School District argued that Floeting should not apply to it but was unable to present any compelling argument to refute the statutory language, which effectively commanded its application.  Specifically, RCW 49.60.215 states that it is an unfair practice for any person or the person’s agent or employee to commit an act that constitutes discrimination in a place of public accommodation.  “Person,” in turn, is defined in RCW 49.60.040(19) as including “any agency or instrumentality of the state or of any political or civil subdivision thereof.”  To refute the conclusion that it was subject to the strict liability imposed by RCW 49.60.215, the School District attempted to present case law showing that a school district could not be held directly/strictly liable for sexual abuse committed by an employee.  While the School District presented cases to that effect, the Court recognized (as Plaintiffs had pointed out), that not a single one of the cases proffered by the School District dealt with claims arising under the WLAD – they merely addressed the application of standard negligence tort principles of liability to the underlying conduct. 

In the alternative, the School District argued that a different statute, RCW 4.08.120 (“Action against public corporations”) controlled over any WLAD-based action and represented the sole means of recovery against a school district.  The Court disagreed.  The language of that statute states that “[a]n action may be maintained against a county or other of the public corporations mentioned or described in RCW 4.08.110, either upon a contract made by such county, or other public corporation in its corporate character and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation.”  The language is not exclusive, and only provides one avenue for a claimant to bring an action against a public corporation/school.  The District then turned to its final argument, which was premised on the theory that RCW 4.08.120 waived sovereign immunity only as to suits “in contract or arising from their acts or omissions.”  The Court was unimpressed.  The Court quickly disposed of this claim simply by noting that the WLAD specifically abrogated any claim to sovereign immunity by creating a private cause of action for discrimination in places of public accommodation (which includes public educational facilities). 

Turning to the second certified question – whether “discrimination” for purposes of a cause of action under the WLAD encompasses intentional sexual misconduct – the Court quickly answered in the affirmative.  Relying again on its decision in Floeting (which held that sexual harassment is a form of sex discrimination), the Court reasoned that intentional sexual misconduct must also be included, as it is simply another form of sex discrimination.  The School District’s contrary argument was an interesting one.  It argued that even though intentional sexual misconduct constituted discrimination for purposes of the WLAD, that action could not be brought in this particular instance because the school bus driver had sexually assaulted both boys and girls.  Thus, the District reasoned, the WLAD did not even apply because the “class at issue [was] not sex, but age.”  The Court was not impressed, as the argument presented by the District did not even answer the question at issue.  Specifically, the District was arguing that the WLAD was inapplicable on the basis of victim “class” (i.e. age, not sex), but neither the applicability of the WLAD nor the class of victims was at issue.  The question was whether “discrimination for the purposes of this cause of action encompasses intentional sexual misconduct, including physical abuse and assault.”  The answer, simply, was “yes.” 

Thus, with both certified questions answered in the affirmative, the parties had their answer, and the WLAD was further strengthened.  A school district be held strictly liable for acts of discrimination in places of public accommodation by its employees, which now has been conclusively defined as including acts of intentional sexual misconduct.