CHRISTOPHER H. FLOETING, Appellant,
GROUP HEALTH COOPERATIVE, a Washington corporation, Respondent.
antidiscrimination law forbids sex discrimination in places
of public accommodation. Sexual harassment is a form of sex
discrimination. Accordingly, the law prohibits sexual
harassment in places of public accommodation.
Floeting alleges that he was a victim of sexual harassment
perpetrated by an employee of Group Health Cooperative. His
factual submissions to the trial court were sufficient to
overcome Group Health's request for summary judgment
dismissal of his lawsuit. Because the trial court ruled
otherwise, we reverse.
is a patient of Group Health, a nonprofit health care system.
For over 30 years, Floeting visited Group Health's
Northgate Medical Center to receive medical services and
obtain prescription medicine.
early September 2012, Floeting told a Group Health employee
that he wished to file a complaint regarding T.T., another
Group Health employee. Floeting said that, while visiting the
medical center over the past few months, T.T. had engaged in
several inappropriate conversations with him, including
telling him that, over the past weekend, she had locked her
boyfriend in a bedroom, danced in front of him, and watched
pornographic videos with him. Floeting told the Group Health
employee (with whom he filed his complaint) that T.T.'s
conduct was sexual harassment, that it made him feel very
uncomfortable, and that he wanted T.T.'s conduct toward
him to stop.
weeks later, after conducting an investigation related to
both Floeting's complaint and another patient's
complaint, T.T.'s employment with Group Health was
2015, Floeting sued Group Health, alleging that the
Washington Law Against Discrimination (WLAD) provides for a
right against sexual harassment by an employee of a place of
public accommodation and that Group Health, because of
T.T.'s conduct, had deprived him of this right. Group
Health moved for summary judgment, arguing that the WLAD does
not recognize such a right and, alternatively, that Floeting
failed to present sufficient facts to support a sexual
to Floeting, as stated either in his deposition or his
declaration in opposition to Group Health's summary
judgment motion, T.T. had engaged in inappropriate conduct in
addition to that documented in Group Health's record of
his complaint. Floeting testified that, when he visited Group
Health that summer, T.T. had repeatedly approached him in the
waiting room, while he was standing in line waiting to
receive medical services, or while he was walking down a
also said that, when T.T. approached him, she had asked him,
"[d]o you like sex, " told him that she gives
"the best blowjobs, " stated that she liked how
"hot" he made her, said that he had a "nice
ass, " and offered that "I bet you have a big cock.
I'd like to see it." Floeting detailed that on a few
occasions when he was sitting in the waiting room, T.T. sat
next to him, "leaned in, " and "pressed her
breasts" against him while telling him "how much
she liked" him. Floeting said that he repeatedly told
T.T. to stop engaging with him in this way.
to Group Health's administrative records, Floeting
visited the medical center on 11 occasions during the summer
of 2012. On at least 7 of those 11 days, T.T. had been
scheduled to work at the medical center at the same time.
response to the parties' briefing and evidentiary
submissions, the trial court granted Group Health's
motion for summary judgment and dismissed Floeting's
various questions presented for our review arise from a
summary judgment order.
We engage in a de novo review of a ruling granting summary
judgment. Anderson v. Weslo, Inc., 79 Wn.App. 829,
833, 906 P.2d 336 (1995). Thus, we engage in the same inquiry
as the trial court. Wilson Court Ltd. P'ship v. Tony
Maroni's. Inc., 134 Wn.2d 692, 698, 952 P.2d 590
(1998). Summary judgment is properly granted when the
pleadings, affidavits, depositions, and admissions on file
demonstrate that there is no genuine issue of material fact
and that the moving party is entitled to summary judgment as
a matter of law. CR 56(c); Hutchins v. 1001 Fourth Ave.
Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).
Green v. Normandy Park Riviera Section Cmty. Club.
Inc., 137 Wn.App. 665, 681, 151 P.3d 1038 (2007).
"In reviewing a summary judgment order, we view the
facts and all reasonable inferences therefrom in the light
most favorable to the nonmoving party." Holmquist v.
King County. 182 Wn.App. 200, 207, 328 P.3d 1000 (2014)
(citing Dumont v. City of Seattle. 148 Wn.App. 850,
861, 200 P.3d 764 (2009)).
course of analyzing several of the questions presented, we
must construe certain portions of the relevant code chapter.
In interpreting the WLAD, we resort to familiar principles of
statutory construction, including reviewing the statutory
language for its plain meaning. State v. Arlene's
Flowers, Inc.. 187 Wn.2d 804, 825-26, 389 P.3d 543
(2017). In so doing, we must deem no part of a statute
"inoperative or superfluous unless it is the result of
obvious mistake or error." Klein v. Pyrodyne
Corp., 117 Wn.2d 1, 13, 810 P.2d 917, 817 P.2d 1359
(1991) (citing Cox v. Helenius, 103 Wn.2d 383,
387-88, 693 P.2d 683 (1985); Newschwander v. Bd. of Trs.
of Wash. State Teachers Ret. Sys., 94 Wn.2d 701, 707,
620 P.2d 88 (1980)). "This requires that every word,
clause, and sentence of a statute be given effect, if
possible." Klein. 117 Wn.2d at 13. We must
assign familiar legal terms in a statute their familiar legal
meaning. Rasor v. Retail Credit Co.. 87
Wn.2d 516, 530, 554 P.2d 1041 (1976).
addition, the legislature has directed that the provisions of
the WLAD "shall be construed liberally for the
accomplishment of the purposes thereof." RCW 49.60.020.
cause of action against Group Health is premised on his claim
of sexual harassment. But Floeting can have no such cause of
action unless the WLAD protects patrons of places of public
accommodation against sexual harassment. Group Health asserts
that the WLAD affords no such protection. We disagree.
provisions of the act are particularly pertinent to this
inquiry. RCW 49.60.030(1) establishes that "[t]he right
to be free from discrimination because of... sex ... is
recognized as and declared to be a civil right."
"'Sex' means gender." RCW 49.60.040(25).
Moreover, the act provides that
[i]t shall be an unfair practice for any person or the
person's agent or employee to commit an act which
directly or indirectly results in any distinction,
restriction, or discrimination, or the requiring of any
person to pay a larger sum than the uniform rates charged
other persons, or the refusing or withholding from any person
the admission, patronage, custom, presence, frequenting,
dwelling, staying, or lodging in any place of public ...
accommodation except for conditions and limitations
established by law and applicable to all persons, regardless
WLAD plainly affords protection against sex discrimination.
harassment is a form of sex discrimination. Our Supreme Court
recognized this more than three decades ago. In discussing
the WLAD's guarantee against discrimination in
employment, RCW 49.60.180, the court observed that
"[s]exual harassment as a working condition unfairly
handicaps an employee against whom it is directed in his or
her work performance and as such is a barrier to sexual
equality in the workplace." Glasgow v. Georgia-Pac.
Corp.. 103 Wn.2d 401, 405, 693 P.2d 708 (1985).
United States Supreme Court has recognized the same as being
true in the context of Title VII actions. "Without
question, when a supervisor sexually harasses a subordinate
because of the subordinate's sex, that supervisor
'discriminate[s]' on the basis of sex."
Meritor Sav. Bank. FSB v. Vinson. 477 U.S. 57, 64,
106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (alteration in
court has expressed a similar view. We have ruled sexual
harassment to be a form of sex discrimination when it occurs
in the course of real estate transactions, Tafoya v.
Human Rights Comm'n. 177 Wn.App. 216, 223-25, 311
P.3d 70 (2013) (construing provisions of the WLAD), or in
educational institutions, S.S. v. Alexander. 143
Wn.App. 75, 93-98, 177 P.3d 724 (2008) (construing Education
Amendments of 1972, Title IX, 20 U.S.C. § 1681-1688).
harassment subjects a person to a "distinction,
restriction, or discrimination" because of that
person's sex, in contravention of RCW 49.60.215(1). It
causes a person "to be treated as not welcome, accepted,
desired, or solicited" on the same basis as others, as
proscribed by RCW 49.60.040(14). And, on the basis of the
person's sex, it deprives that person of the right to
"the full enjoyment of any of the accommodations,
advantages, facilities, or privileges" of places of
public accommodation, as addressed in RCW 49.60.030(1)(b).
WLAD prohibits sex discrimination in places of public
accommodation. Sexual harassment is a form of sex
discrimination. The WLAD affords protection against sexual
harassment in places of public accommodation.
49.60.030(2) authorizes private plaintiffs to bring
suit for violations of the WLAD." Arlene's
Flowers. 187 Wn.2d at 821.
To make out a prima facie case under the WLAD for
discrimination in the public accommodations context, the
plaintiff must establish four elements: (1) that the
plaintiff is a member of a protected class, RCW 49.60.030(1);
(2) that the defendant is a place of public accommodation,
RCW 49.60.215; (3) that the defendant discriminated against
the plaintiff, whether directly or indirectly, id.;
and (4) that the discrimination occurred "because of the
plaintiffs status or, in other words, that the protected
status was a substantial factor causing the discrimination,
Arlene's Flowers. 187 Wn.2d at 821-22: see
also Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637,
911 P.2d 1319 (1996) (announcing similar construct for
disability discrimination claims under RCW 49.60.215).
evaluating a claim premised on sexual harassment, as Floeting
propounds, the first, second, and fourth elements will
usually be fairly easy to analyze. Because of the nature of
sexual harassment, the third element may often call for a
nuanced or more complex analysis.
harassment may often occur in circumstances quite different
from those attendant to other forms of discrimination. One
need only turn to Arlene's Flowers and Fell to
see this in play. In both of those cases, the alleged
discriminatory actions were the official acts of those in
control of the public accommodation. See Arlene's
Flowers. 187 Wn.2d 804 (discriminatory act was the
decision to refuse service-made by owner); Fell, 128 Wn.2d
618 (discriminatory act was the decision to eliminate
service-made by board of directors). But few corporate boards
will formally mandate the sexual ...