Strict Liability for Washington School Districts

Jan 12, 2021 | Sexual Abuse |

This article originally appeared in Pierce County Lawyer magazine, November/December 2020 issue.

By Bridget Grotz

Recently, on June 18, 2020, the Washington Supreme Court in W.H., et al., v. Olympia School District, et al., 195 Wn.2d 779, 465 P.3d 322 (2020) held in a 9-0 decision Washington school districts may be subject to strict liability for discrimination by their employees under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. The Supreme Court further held discrimination under the WLAD encompasses intentional sexual misconduct such as physical abuse and assault.

The importance of this decision cannot be understated. Sexual harassment and sexual assault, especially at a young age, can have significant and damaging impacts on survivors’ physical and emotional health. Exposure to childhood trauma can lead to declining health as an adult and “can dramatically increase people’s risk for 7 out of 10 of the leading causes of death in the U.S.— including high blood pressure, heart disease, and cancer.”

In recent years, and particularly with the “Me Too” movement, there has been increased attention in the media to the widespread sexual harassment and sexual assaults on college campuses and in the workplace. However, there appears to be less focus on the fact that individuals are often subject to sexual harassment and sexual assault starting at a young age. As Legal Voice pointed out in their Amicus Brief filed in W.H., “[c]hildren under the age of eighteen are the victims in over two-thirds of sexual assault cases reported to law enforcement.”

In the W.H. case, it was undisputed that the minor plaintiffs in the case were abused by an Olympia School District bus driver on school buses during his employment. The United States District Court for the Western District of Washington certified two questions to the Washington Supreme Court: (1) “May a school district be subject to strict liability for discrimination by its employees in violation of the 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 Washington Supreme Court answered both questions with a resounding yes.

With regard to the first question, the Court primarily relied on the 2019 decision in Floeting v. Group Health Cooperative, 192 Wn.2d 848, 434 P.3d 39 (2019). In Floeting, the Court held employers were strictly liable for the discriminatory actions of their employees under RCW 49.60.215, the WLAD’s public accommodations provision. The W.H. Court ultimately determined “there is no reason to refrain from applying Floeting to school districts.” Under the WLAD, public accommodations claims can be brought against “any person.” And a “person” includes “political . . . subdivisions” of the state. Because school districts are political subdivisions of the state, the Court held WLAD public accommodations claims apply.

The W.H. Court also relied on Floeting to answer the second question. In Floeting, the Washington Supreme Court held “[s]exual harassment is a form of sex discrimination.” The W.H. Court reasoned that because sexual harassment is a form of sex discrimination, intentional sexual misconduct is also a form of sex discrimination. In doing so, the Court made undeniably clear that discrimination under the WLAD can encompass all forms of intentional sexual misconduct, including sexual assault and rape.

When asked about the significance of this decision, Plaintiffs’ attorney, Darrell Cochran, at Pfau Cochran Vertetis Amala PLLC stated, “This important holding eliminates an extremely dangerous and perpetually self-fulfilling defense: ‘golly, we never saw anything that would have suggested that teacher/coach/band director/ bus driver groomed those children for sexual abuse.’ The overwhelming temptation for far too long has been to create a climate where no one looks, and no one reports anything wrong. Strict liability flips the script. Now the emphasis will be on making sure that every employee knows what to look for, spots it, and reports. It’s a huge step forward towards protecting children and we are delighted to have helped the cause.”