Court Permits “Public Policy” Constructive Discharge Claim Based on Sexual Harassment
Candace Wahl worked for a few months as a dental assistant in a small dental clinic. A dentist who co-owned the clinic commented about her breasts and the bodies of other employees and female patients, made sexual explicit comments about his sex life, and at one point allegedly masturbated while the two of them were in a darkroom. After the darkroom incident, Wahl worked the rest of the week and quit the following Monday. The dentist denied the incidents and contended that Wahl was a bad employee.
Wahl sued on a claim for “wrongful discharge in violation of public policy.” She had minimal wage loss because she was able to find another job right away, but after a trial she was awarded $20,000 in emotional distress damages. The trial court’s ruling included the following findings:
It is a violation of the common law of the State of Washington to sexually harass an employee. There was sufficient evidence to prove a common law claim of sexual harassment against Dr. Moore.
Furthermore, there was a hostile working environment created by Dr. Moore. When the person you are to report a sexual harassment claim to is the harasser and there is no higher person, there is no requirement to complain. Were Candace Wahl to have complained to either Dr. Moore or Mrs. Moore, it would not have any benefit and thus would have been an exercise in futility.
Candace Wahl was constructively discharged as the working conditions and environment were so intolerable that a reasonable person would have quit. Further Candace Wahl quit in response to Dr. Moore’s sexually harassing conduct.
There was sufficient evidence to prove emotional distress damages.
The court concludes that a reasonable award to Plaintiff, Candace Wahl is $20,000.
These findings were challenged in the Washington Court of Appeals. One issue was whether Wahl could pursue a sexual harassment or constructive discharge claim against a small employer. The clinic had less than 8 employees so Wahl could not state a claim under the Washington Law Against Discrimination, RCW 49.60. She alleged a common law claim for wrongful discharge based on the “public policy against gender discrimination.”
The court of appeals permitted Wahl to state a common law claim based on public policy.
According to the court, while Wahl cannot bring a statutory claim under chapter 49.60 RCW because the clinic has fewer than eight employees, the clear mandate of public policy against sex discrimination set out in that statute remains and supports the policy element of the common law tort of wrongful discharge in violation of public policy.
The court then noted that a “hostile work environment” claim is “a subset of gender discrimination” and that a “public policy” claim could be based on sexual harassment:
Public policy favors rebuffing unwanted sexual advances in the workplace where engaging in sexual activity negatively impacts productivity, employment stability, and client care. Public policy supports Wahl’s desire to conduct her work duties without engaging in unwanted sexual activity.
The court also addressed the fact that Wahl was not terminated. Her claim was allowed based on a theory of “constructive discharge.” Constructive discharge can apply when an employer engages in a deliberate act that makes working conditions so intolerable that a reasonable person would have felt compelled to resign. Working conditions can be “intolerable” because of a pattern of conduct or where there are aggravated circumstances. The employee must show that he or she resigned because of the conditions and not for some other reason, like finding a better job.
Wahl’s case was tried before a judge instead of a jury, but in either situation whether working conditions are intolerable is a factual question to be decided after trial. Here, the court of appeals found that Wahl satisfied this element of her claim, stating as follows:
Here, the trial court found that a reasonable person would find Dr. Moore’s continuous pattern of making sexually graphic comments was an intolerable working condition. These comments were made a few times a week for at least three months and escalated until, over Wahl’s objections, Dr. Moore masturbated in the darkroom while he was supposed to be training her on how to duplicate x-ray film. The trial court found that Wahl’s testimony about the sexual episodes was credible. We defer to the trial court evidence regarding witness credibility and conflicting testimony. Under the facts presented here, a rational trier of fact could conclude that Dr. Moore’s deliberate sexual harassment behavior created working conditions so intolerable that Wahl reasonably felt compelled to resign. Thus, Wahl was constructively discharged.
Finally, the trial court upheld the award of emotional distress damages, stating as follows:
At trial, Wahl offered proof of emotional distress when she testified that, following the darkroom incident, she felt disgusted, used, and violated; that she could no longer work for another dentist again; that she has become claustrophobic; that she can only work in warehouse-type open spaces; and that, when she sees a car similar to Dr. Moore’s, her stomach “clenches.” Wahl also testified that she sought counseling but did not feel the process was helpful. In addition, Wahl’s mother testified that Wahl’s mood changed halfway through her employment with Dr. Moore and that Wahl became withdrawn and began to spend more time in her bedroom. As discussed above, there was sufficient evidence to find that Dr. Moore had wrongfully discharged Wahl in violation of public policy and, thus, damages for the resulting emotional distress proved were recoverable.
The case is Wahl v. Dash Point Family Dental Clinic, Inc. (4/15/2008). A copy of the decision can be read here.