Wash. Supreme Court holds school districts liable for employees’ sexual misconduct

Washington school districts may be held to strict liability for the discriminatory acts of its employees in places of public accommodation and that covers intentional sexual misconduct including physical abuse and assault, the state Supreme Court ruled on Thursday.

Darrell Cochran, the attorney for the plaintiffs who prevailed in the case, said the high court’s unanimous decision is a victory for school children.

“They have another weapon in the legal arsenal to protect themselves from child sexual abuse,” he said.

The decision makes it clear that school districts, like other places of public accommodation, must take responsibility to prevent sexual harassment and assault by their employees, said Tiffany Cartwright, a Seattle attorney who is pro bono counsel for Legal Voice, a nonprofit women’s rights group. It filed a friend of the court brief in support of the plaintiffs.

“Students have the right to attend school free from discrimination in any form, including sexual misconduct,” Cartwright added.

The Supreme Court’s decision resulted from a federal lawsuit filed against the Olympia School District and school officials on behalf of two girls who were sexually abused by Gary Shafer. He was convicted in 2011 of sexually assaulting three Olympia girls while working as a bus driver for the Olympia School District.

Shafer admitted to molesting dozens of girls and is serving a 14-1/2 year sentence at the Washington Corrections Center in Shelton.

The U.S. District Court for the Western District of Washington sent the state Supreme Court two questions to decide about the Washington Law Against Discrimination.

The first was: “May a school district be subject to strict liability for discrimination by its employees in violation of the WLAD?”

The second was “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?”

“We answer yes to both questions,” wrote retired Justice Charles Wiggins in the opinion released Thursday. He took part in oral arguments and so continued work on the decision after his retirement.

Strict liability holds a party responsible for their actions without the plaintiff having to prove negligence or fault.

The court cited its 2019 ruling that employers are strictly liable under the state’s anti-discrimination law when their employees sexually harass members of the public.

That decision also found that sexual harassment is a form of sex discrimination.

“Having held that one form of intentional sexual misconduct constitutes sex discrimination, it logically follows that other forms of intentional sexual discrimination, including physical abuse and assault, also constitute sex discrimination,” Wiggins wrote in the decision released Thursday.

Gerald Moberg, an attorney in Grant County who represented the Olympia School District, did not return a message seeking comment. Susan Gifford, a district spokeswoman, said in an email: “Given that ruling defining strict liability, we will proceed with the matter in U.S. District Court.”

Attorneys for the school district had argued that “school districts may not be strictly liable, but are subject to liability only for their acts and omissions.”

Cochran, the Tacoma attorney representing the plaintiffs, said Thursday’s court decision means that argument won’t hold weight anymore, placing the burden on school districts to screen out employees who are sexual abusers.

“This ruling says school districts, when you hire a pedophile, you will be responsible when they sexually abuse children and it’s not good enough to say, ‘Hey, we just didn’t do a thorough enough job in our initial evaluation to understand that he was a pedophile,’ ” he said.

The lawsuit pending in federal court in Tacoma seeking punitive damages for the plaintiffs will move forward, Cochran said.

This story was originally published June 19, 2020 at 5:45 AM with the headline "Wash. Supreme Court holds school districts liable for employees’ sexual misconduct."