In a sweeping new decision, Division I of Washington’s Court of Appeals expanded the scope of the Washington Law Against Discrimination (“WLAD”) for individuals who claim to be discriminated against by a business. Historically, WLAD has protected individuals’ rights to the full enjoyment of accommodations, advantages, facilities, or privileges of places of public accommodation.
Division I has more broadly expanded protections in “places of public accommodation” to places that are not public at all. In A.S. v. Provail, the Court of Appeals has taken a broader view, holding that WLAD’s protections for “places of public accommodation” apply in full force wherever a business provides its services available to the public, even if those services are rendered in the customer’s home.
At issue in this case, the plaintiff alleged that a home health care provider sexually assaulted her in her own private residence. She pursued numerous claims against the health care provider’s employer, Provail, including negligence as well as sex and disability discrimination under WLAD. After Provail asked the trial court to consider whether WLAD could, by its terms, apply, the trial court concluded that Provail was a place of public accommodation, even if it was providing services in a private residential home. Affirming the trial court’s decision, Division I pronounced that WLAD applies “regardless of the physical place in which some or all of those services are provided.” Importantly, the Court of Appeals noted that places of accommodation that are “distinctly private” may be exempt under RCW 49.60.040 but it was not at issue in this case.
A.S. v. Provail potentially presents a sea change for Washington businesses. The Court of Appeals drew inspiration from Minnesota’s unusually broad statutory language—even though Washington’s Legislature has not adopted similar language in WLAD—and California’s Unruh Act. The Court of Appeals appears poised to foster a new cottage industry of civil rights litigation under Provail’s expansive definition of a “place of public accommodation.” We expect that soon Washington courts will be faced with the same questions California courts have addressed under the Unruh Act and answer whether WLAD is a vehicle to litigate web accessibility and online only businesses fall within WLAD’s reach as a place of public accommodation.
While many of the questions Provail raises have not been answered, businesses should be clearheaded about the potential consequences and new litigation that may ensue. To reduce the risk, businesses should ensure that all of its workers, including employees who work onsite at customers’ homes, are trained on anti-discrimination policies and laws. Unlike employment discrimination claims, these public accommodation claims can involve strict liability and exposure to attorney’s fees and treble damages.
For similar reasons, web accessibility should become a growing priority for Washington businesses. If recently trends are any indication, these lawsuits will only continue to proliferate with the rise of AI technology. As we have written recently, there is a 40% year-over-year increase in pro se ADA Title III litigation, in part due to the availability of ChatGPT and other assistive AI technology.
We’ll be closely monitoring new developments and litigation trends. Stay tuned for more insight and analysis as developments occur.
