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On June 22, 2023, the National Women’s Law Center (NWLC), along with our law firm partner Outten & Golden LLP, the Washington Employment Lawyers Association, and 38 additional organizations, sought leave to file an amicus brief with the State of Washington’s Court of Appeals in LaRose v. King County, a case involving employers’ responsibility to protect workers from discrimination, specifically work-related sexual harassment by a third party. This responsibility does not stop at the office door; employers are responsible for keeping employees protected from sexual and other forms of harassment, including based on race, LGBTQ status, disability, age, and other identities even when workplace-related harassment takes place outside of the physical office. The person bringing the case, Sheila LaRose, is represented by Mann & Kytle, PLLC; Talmadge/Fitzpatrick; and Law Offices of Susan Mindenbergs, all in Seattle. Mary Ruth Mann, who also represented LaRose at the trial level, is a long-time member of the National Women’s Law Center’s Legal Network for Gender Equity. The National Women’s Law Center Fund has supported earlier stages of this case through the TIME’S UP Legal Defense Fund.
Background
(Content warning: Description of sexual harassment including stalking).
Sheila LaRose was working as a public defender in Seattle in 2013 when she faced increasing forms of sexual harassment from one of her clients and her employer did almost nothing to protect her. Now the employer is saying they’re not liable in part because the harassment took place outside the office by a third party or “nonemployee.” That’s why NWLC is filing an amicus brief to support Sheila and to explain that workers, including survivors, have legal protections against harassment that don’t disappear at the office door or when the harassment is by a third party. We are also filing to highlight that reporting harassment to one’s supervisor should “count” as notice to one’s employer.
The harassment Sheila faced from her former client intensified over the course of many months, including the client approaching her home and in public, as well as attempting to reach her at work. This went on for a year, despite her supervisors being aware of the harassment, including through her reports to them. Sheila’s employer, King County, never provided her with any training, policies, or procedures about what employees should do if they were harassed or threatened by clients. The employer also had no policy for how supervisors should respond to such situations. Rather, there was an expectation that people should just tolerate sexual harassment.
Sheila filed a lawsuit, alleging, among other things, that her employer was responsible for a hostile work environment based on her sex. Ultimately, following a 23-day trial, Sheila won and a jury found that King County created a hostile work environment when it failed to protect Sheila from her former client’s sexual harassment, awarding her over $6 million. King County appealed, arguing among other things that it is not liable for the actions of “third parties” “outside of the workplace,” and that Sheila failed to bring her concerns to the attention of “upper management.”
Our Amicus Brief
Under Title VII of the Civil Rights Act, the federal law that protects workers from employment discrimination including sexual harassment, employers may be liable when they fail to prevent or remedy work-related harassment of employees, including by third parties. That is, employees should not have to face discrimination, including sexual or other harassment, even if it’s caused by someone like a client, vendor, independent contractor, or other person in a work-related context. During an earlier proceeding in Sheila LaRose’s case, the State of Washington’s Court of Appeals made clear that, like federal law, the state civil rights law, the Washington Law Against Discrimination, protects employees from work-related harassment by third parties.
In this stage of the case, Sheila’s employer argues that it is not responsible for the hostile work environment that Sheila endured because much of the harassment by the third party occurred “outside” her workplace. However, the law is clear that an employer’s responsibility to protect its employees from a hostile work environment extends beyond the walls of its office. This is the case under federal law, as Title VII holds employers liable for workplace harassment, even when it’s “outside the workplace.” Courts interpreting the Washington Law Against Discrimination look to Title VII precedent when interpreting the state civil rights law. In our brief, we argue that the LaRose Court should do the same here and affirm King County’s liability for failing to protect Sheila from third-party harassment including stalking that began in the workplace and then extended outside the office.
Incorrectly limiting protection against discrimination, including sexual harassment, to only conduct that is carried out exclusively within an employee’s physical place of employment ignores the very nature of harassment, including stalking. Stalking is a form of harassment that, by definition, goes beyond one physical location. Millions of people are stalked every year in the United States, including a significant proportion by individuals related to the victim’s workplace. The negative impacts of work-related stalking are far-reaching; they include diminished performance, work disruptions, violence at the workplace, and losing both one’s job and sense of safety altogether.
In addition, incorrectly limiting protections against discrimination including sexual harassment to conduct carried out within a physical place of employment ignores the reality of a range of workers, including those who work outside the confines of a traditional office, and teleworkers. Employees today increasingly do not perform their work exclusively in a single office location; they work in multiple physical locations, they work remotely from home, and they interact with other employees, customers, and clients off site, online, and over the phone. This work exposes employees to discrimination and harassment in a variety of locations, including, for example, in Zoom or Teams chats. In fact, during the pandemic, harassment through electronic means has escalated, harming workers, particularly women and people of color.
We are asking the Washington State Court of Appeals to ensure that its laws follow the federal workplace civil rights laws when it comes to providing protection against workplace harassment by third parties and in spaces outside of the physical workplace.
Finally, our brief highlights that employees who experienced workplace discrimination, including sexual harassment, should not be required to report that conduct to “upper” management, as argued by King County. Federal law and Washington state law are clear that informing one’s supervisor of workplace harassment is sufficient notice to an employer in order to hold employers liable for a hostile work environment. Imposing a new, more burdensome approach to reporting harassment would create even more additional barriers to reporting discrimination and undermine the purpose of workplace civil rights laws. Such an approach would disproportionately harm workers, including entry-level and junior-level workers who often have limited or no access to top management. In addition, according to the agency charged with enforcing our federal civil rights laws, the U.S. Equal Employment Opportunity Commission (EEOC), harassment is more likely to go unchecked in workplaces where corporate offices and representatives of senior management are far removed physically from employees, such as in the context of retail stores, chain restaurants, or distribution centers. Thus, these workers should be able to report discrimination, including sexual harassment, to their supervisor and it should count as notice to the company, and not be another barrier to later bringing a civil rights claim.
We urge the Washington State Court of Appeals to rule in favor of Sheila LaRose and other workers in Washington and affirm the trial court’s decision that workplace harassment is harassment even when it takes place by third parties (nonemployees) and takes place outside of the office, and that reporting discrimination, including harassment, to one’s supervisor counts as giving notice to one’s employer.
