David & Faris Tafoya v. The Washington State Human Rights Commission ( 2013 )

FILED
COURT 0, APPEALS
bivislom 11
2013 NOV 13 AM 11: 13
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAVID and FARIS TAFOYA, husband and No. 43003 -7 -II
wife, consolidated with
No. 43376 -1 - II
Appellants,
V.
STATE OF WASHINGTON HUMAN ORDER AMENDING OPINION
RIGHTS COMMISSION,
Appellant.
The opinion previously filed in this case on October 15, 2013, is hereby amended as
follows:
Add " the ALJ' s decision and remand for further proceedings consistent with this
opinion." to the end of the last sentence of the opinion and insert a footnote that reads:
We note that the Superior Court order modified 'the amount of actual damages
awarded in the ALJ' s order. However, the parties do not challenge either the
amount of damages in the ALJ' s order or the Superior Court' s order modifying
the amount of actual damages. We do not consider the trial court' s action on
administrative appeal. Postema v. Pollution Control Hearings Bd., 142 Wn.2d
o. 4- 003 - 7 - II, consolidated with No. 43376 - 1 - II
68, 77, 11 P.3d 726 ( 2000). Accordingly, we affirm the ALJ' s opinion in its
entirety, including the original amount of actual damages awarded by the ALI
Accordingly,.it is
SO ORDERED. /
DATED this day of , 2013.
DALTON, J. P. T. '
We concur:
BRINTALL, j\
UM
ON, A.C. J.
2
FILED
COURT OF APPPALS
DIVI IO. it
013 OCT 15 AM 8, 55
S IA F `` A Hlpti ON
By.,
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION H .
DAVID and FARIS TAFOYA, husband and
wife,
Appellants, No. 43003 -7 -I1
consolidated with
No. 43376 -1 - II
V.
PUBLISHED OPINION
STATE OF WASHINGTON HUMAN
RIGHTS COMMISSION,
Respondent.
DALTON, . . P. T1-
J Mary Gossard rented a home from David and Faris Tafoya:2 After
several months of enduring David' s sexual comments and inappropriate behavior, Gossard filed
a complaint with the Washington State Human Rights Commission ( Commission), alleging that
the Tafoyas engaged in sexual harassment and retaliation. The Commission filed a formal
complaint against the Tafoyas. An administrative law judge (ALJ) found that the Tafoyas
violated the Washington Law Against Discrimination (WLAD), RCW 49. 60 et seq., by engaging
in sex discrimination and retaliation. The Tafoyas appeal arguing that the ALJ' s final decision
and order ( 1) misapplies the law and ( 2) is not supported by substantial evidence. We hold that
1 Judge Jeanette Dalton is serving as a judge pro tempore ofthe Court of Appeals, Division H,
under CAR 21( c).
2
David Faris Tafoya, collectively, are referred to as " the Tafoyas." When referred to
and
individually, David' s and Faris' s first names are used for clarity; we intend no disrespect.
No. 43003 -7- II, consolidated with No. 43376 -1 - II
the ALJ correctly applied the law and that the findings are supported by substantial evidence, and
we affirm.
FACTS
The Tafoyas own property in Thurston County. The property includes the Tafoyas' home
and a rental home. A fence separates the Tafoyas' property from the rental property. In March
2006, Gossard and the Tafoyas signed a one -year lease.
David engaged in numerous instances of inappropriate behavior with Gossard during the
time she lived in the rental home. The first episode occurred while Gossard was signing the
lease:' David asked his wife if she would mind if David. chased Gossard around the pond on the
property. Later; while David was helping Gossard move her piano, he made a comment about
women being stupid. David also hugged Gossard and touched her buttocks.
David made several sexually inappropriate comments to Gossard: When Gossard broke
3
her ankle, David brought her dinner and said, " I' ve seen your pussy. " Admin. Record (AR) at
365. After hearing Gossard play the piano, David told Gossard, "`` Yourpiano playing was
beautiful. I made love to you several times while I was listening to you. I could even taste
you. "' AR at 364. David also called Gossard late at night and asked her to come over to the
house and " party." AR at366. David told Gossard that " some nights he thought about her,
watched pornography, and masturbated." AR at 365.
David made several, less explicit comments that made Gossard feel uncomfortable.
David told Gossard that he thought about her all the time. He also told Gossard that Faris was
going through menopause and they were no longer having sex. AR 365. One night, David
called Gossard and told her to come over to his house. Gossard responded that she could not
3
Gossard owns a cat.
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No. 43003 -7 -II, consolidated with No. 43376 -1 - II
because she was in her bathrobe. David told her she should just come over in her bathrobe.
Gossard refused. After Gossard' s friend stayed the night at her house, David made a comment
implying that Gossard was a prostitute. Once, David poked her in the stomach and commented
that she was " gaining weight and looked like the Pillsbury doughboy."
In addition to his comments, David' s behavior made Gossard feel uncomfortable,
embarrassed, and afraid. One afternoon, Gossard went to the Tafoyas' house to ask directions to
the post office and David answered the door completely nude. Another afternoon,
David] invited [ Gossard] to see his art in his [ recreational vehicle ( RV)]....
Gossard saw that the paintings were of sexual subjects, including [ Faris] in a
bikini touching herself and a woman with her legs spread open. [ David] pushed
Gossard onto the bed and sat down next to her.... Gossard left immediately.
AR at 366.
Gossard informed Faris about David' s conduct. Faris replied that Gossard' s accusations
were untrue and that Faris believed it was Gossard who was pursuing David. The Tafoyas called
Gossard later and left her a message saying that nothing ever happened. They also accused
-
Gossard of making everything up.
In May 2006, Gossard filed a complaint with the Commission. On June 13, the
Commission notified the Tafoyas that it was investigating Gossard' s complaint. After the
Tafoyas were notified of Gossard' s complaint, they treated her differently. David stopped
mowing the lawn on the rental property which he had done before Gossard' s complaint. David
threatened to throw rocks at Gossard' s cat, causing Gossard to fear for her cat' s safety. David
also took down the chicken wire that had been installed on the fence to prevent Gossard' s cat
from running into the roadway. The Tafoyas also contacted Gossard' s ex- husband to obtain
information about Gossard to present to the Commission, despite Gossard' s earlier
No. 43003 -7 -II, consolidated with No. 43376 -1 - II
4
admonishment against contacting her ex- husband. In August 2006, Gossard found a new place
to rent and moved out of the Tafoyas' rental home.
The Commission investigated Gossard' s complaint and filed an amended complaint,
charging the Tafoyas with engaging in unfair practices in a real estate transaction. Specifically,
the Commission alleged the Tafoyas committed unfair practices by
1) subjecting Gossard to sexual harassment; ( 2) failing to take action designed to
end the sexual harassment; ( 3) coercing; intimidating, threatening, and interfering
with Gossard' s attempts to exercise and enjoy her fair
housing rights; ( 4)
coercing, intimidating, threatening, and interfering with Gossard' s attempts to
oppose other unfair practices described herein; and ( 5) aiding and assisting each
other in perpetuation ofthe other unfair practices described herein.
AR at 5. A four -day administrative hearing was held in August 2010.
Gossard testified to the above facts at the administrative hearing. Some of the Tafoyas'
former tenants testified that David had also engaged in similarly inappropriate behavior during
their tenancies. The Tafoyas denied Gossard' s accusations or, alternatively, argued that David' s
actions were not " sufficiently severe so as to constitute discrimination by sexual harassment"
AR at 377.
The ALJ found that Gossard' s testimony was credible and the " Tafoyas' denials and
descriptions of the incidents [ we] re not credible." AR at 377. The ALJ concluded that the
Tafoyas engaged in sex discrimination by sexual harassment and Faris aided and abetted David' s
sexual harassment of Gossard. The ALJ also concluded that that Tafoyas engaged in retaliatory
acts by threatening Gossard' s cat and contacting her ex- husband.
At the time she rented the property, Gossard told the Tafoyas that she had a protection order
against her ex- husband because he was abusive. She specifically asked the Tafoyas not to
disclose any information to anyone about [her] living situation, as [ she] wanted to keep it
private due to the fact that [ she] knew that [her] ex- husband could find out and possibly hurt
her]." Admin. Report of Proceedings at 51.
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No. 43003 -7 -II, consolidated with No. 43376 -1 - II
The AD ordered the Tafoyas to cease and desist from engaging in unfair practices by
sexually harassing female tenants or retaliating against persons who file discrimination
complaints. AR 390. The ALJ awarded Gossard actual damages in the amount of $ 422.75,
3,
10, 000. 00 in compensatory damages for " humiliation and emotional distress," and imposed a
civil penalty of $10, 000. 00.
The Tafoyas appealed to the Thurston County Superior Court. The superior court
reduced Gossard' s damages to $3, 114.75, but affirmed the ALJ' s final decision in all other
respects. The Tafoyas timely appeal.
ANALYSIS
The Administrative Procedure Act (APA); RCW 34.05 et seq, governs our review of
agency action. The party seeking relief bears the burden of demonstrating the invalidity ofthe
agency action. RCW 34.05. 570( 1)( a). We may reverse an agency action if the agency
erroneously interpreted or applied the law, or the " rder is not supported by substantial evidence.
o
RCW 34. 05. 570( 3)( d) -(e).
We apply the APR' s standards directly to the agency record, sitting in the same position
as the superior court." Timberlane Mobile Home Park v. Human Rights Comm' n ex rel.
Campbell, 122 Wn. App. 896, 900, 95 P.3d 1288 ( 2004) ( citing Burnham v. Dep' t ofSoc. &
Health Servs., 115 Wn. App. 435, 438, 63 P.3d 816 ( 2003)). We review findings of fact for
substantial evidence. Timberlane, 122 Wn. App. at 900. " An agency order is supported by
substantial evidence if there is `` a sufficient quantity of evidence to persuade a fair -
minded person
of the truth or correctness of the order. "' Hardee v. Dep' t of Soc. & Health Servs., 172 Wash. 2d 1,
6, 256 P.3d 339 ( 2011) ( internal quotations omitted) ( quoting Thurston County v. W. Wash.
No. 43003 -7 -II, consolidated with No. 43376 -1 - II
Growth Mgmt. Hearings Bd., 164 Wash. 2d 329, 341, 190 P.3d 38 ( 2008)). We review conclusions
of law de novo. Timberlane, 122 Wash. App. at 900.
UNFAIR PRACTICES IN REAL ESTATE TRANSACTIONS
The ALJ concluded that the Tafoyas engaged in unfair real estate practices under the
WLAD. The Tafoyas appear to argue that the ALJ misinterpreted and misapplied the law
because ( 1) they did not violate the plain language of the statute because they rented the property
to Gossard and did not prevent her from using it, and ( 2) David' s conduct was not sufficiently
severe or pervasive to be considered sexual harassment. We hold that the ALJ properly
concluded that sexual harassment by a landlord toward a tenant is discriminatory conduct that .
interferes with the terms, conditions, or privileges associated with renting property and David' s
conduct constituted' sexual harassment in violation of the WLAD..
RCW*49. 60. 030 guarantees the right to be free from discrimination because of sex. The.
right to be free from discrimination includes " the. right to engage in real estate transactions
without discrimination." RCW 49. 60. 030( 1)( c). It is an unfair practice " to discriminate against
aperson in the terms, conditions, or privileges of a real estate transaction or in the furnishing of
facilities or services in connection therewith" or ``[ t] o discriminate in the sale or rental, or to
otherwise make unavailable or deny a dwelling, to any person." RCW 46. 60. 222( 1)( b), ( f). A
real estate transaction" includes the rental or lease of real property. Former RCW
49. 60. 040( 21) ( 1997). The WLAD should be construed broadly. Blaney v. Int' l Ass' n of
Machinists & Aerospace Workers, Dist. No. 160, 151 Wash. 2d 203, 214, 87 P.3d 757 ( 2004)
citing Marquis v. City ofSpokane, 130 Wash. 2d 97, 109, 922 P.2d 43 ( 1996)).
There are no Washington cases that address sexual harassment as an unfair practice in
real estate transactions under the WLAD. But there is significant federal authority that ( 1)
0
No. 43003 -7 -II, consolidated with No. 43376 -1 - II
establishes sexual harassment as a form of discrimination in housing and ( 2) provides the legal
standard for determining whether sexual harassment has occurred. Similar to the WLAD, the
Fair Housing Amendments Act (FHAA), 42 U.S. C. chapter 45, prohibits discrimination " in the
terms, conditions, or privileges of sale or.rental of a dwelling" based on sex. 42 U.S. C. §
3604( b). The FHAA also prohibits making a dwelling unavailable because of sex. 42 U.S. C. §
3604( a). "[ T] he language of the [ FHAA] is `` broad and inclusive' and must be given a `` generous
construction. "' Samaritan Inns, Inc. v. District ofColumbia, 114 F.3d 1227, 1234 (D. C. Cir.
1997) ( quoting Trafficante v. Metro Life Ins. Co., 409 U.S. 205, 209, 212, 93 S. -Ct. 364, 366 -67,
368, 34 L. Ed. 2d 415 ( 1972)). When interpreting Washington law, we may look to the federal
case law when a federal anti -
discrimination law contains the same protections and mandates the
same broad construction. Fahn v. Cowlitz County, 93 Wash. 2d 368, 376, 610 P.2d 857, 621 P.2d
1293 ( 1980).
The Tafoyas assert that "[ t]here is no issue concerning the fact that Gossard obtained
possession of the rental area and resided upon it." Br. of Appellant at 22. The Tafoyas argue ,
that the WLAD should be narrowly read so that unfair practices in a real estate transaction are
limited to unfair practices in entering into a lease or rental agreement and do not extend to
actions during the term of the tenancy. Relying on their narrow reading of the WLAD, the
Tafoyas assert that they did not engage in an unfair practice at the time they entered into the
original rental agreement with Gossard.
But the Tafoyas ignore several federal cases that recognize sexual harassment as a form
of discrimination in the terms, conditions, or privileges of renting property. U. v. Hurt, 676
S
F. 3d 649, 654 ( 8th Cir. 2012) (" Sexual harassment is actionable under the FHA[ A]. ");see also
Quigley v. Winter, 598 F.3d 938, 946 ( 8th Cir. 2010); DiCenso v. Cisneros, 96 F.3d 1004, 1008
7
No. 43003 -7 -II, consolidated with No. 43376 -1 - H
7th Cir. 1996); Honce v. Vigil, 1 F.3d 1085, 1088 -90 ( 10th Cir. 1993). Washington courts have
similarly recognized the necessity of construing the WLAD broadly to affect the legislative
purpose of the WLAD: to eliminate and prevent discrimination in real estate transactions based
on sex. RCW 49. 60.010; Blaney, 151 Wash. 2d at 214. Indeed, the legislature has explicitly found
that " discrimination threatens not only the rights and proper privileges of its inhabitants but
menaces the institutions and foundations of a free democratic state." RCW 49. 60. 010. Under
the Tafoyas narrow construction of the WLAD, there would be no claim for discrimination as
long as a tenant is not sexually 'harassed until after she has rentedproperty and resided on it. The
Tafoyas' would create an absurd result which could not have been intended by the legislature
and clearly defies the mandate to construe the WLAD broadly to prevent discrimination. Dept
of Ecology v. Tiger Oil Corp., 166 Wn. App. 720, 762, 271 P.3d 331 ( 2012) ( citing Eurick V.
Pemco Ins. Co., 108 Wash. 2d 338, 341, 738 P.2d 251 ( 1987)). Accordingly, we reject Tafoyas
argument and hold that sexual harassment is an unfair practice in a real estate transaction and is
actionable under the WLAD.
Alternatively, the Tafoyas argue that if a sexual harassment claim exists, David' s conduct
did not constitute sexual harassment that is pervasive enough to create a hostile environment.
Federal courts have determined that the sexual harassment must be unwelcome and " sufficiently
severe or pervasive so as to interfere with or deprive [ the tenant] of her right to use or enjoy her
home." Quigley, 598 F.3d at 946 -47 ( citing DiCenso, 96 F.3d at 1008). The WLAD prohibits
discrimination against a person in terms, conditions, or privileges of a real estate transaction.
RCW 46. 60. 222( 1)( b). The use and enjoyment of a rental home is inherent in the terms,
conditions, or privileges of the rental agreement.
No. 43003 -7 -II, consolidated with No. 43376 -1 -II
Where there is not an established standard for establishing discrimination in a certain
context, we will often rely on the standards from employment discrimination cases. For
example, in Fell v. Spokane TransitAuth., 128 Wash. 2d 618, 632, 911 P.2d 1319 ( 1996), our
Supreme Court, to ascertain whether there was discrimination against the disabled in places of
public accommodation, used the standards for determining whether an employer discriminated
against the disabled in the workplace.. The ALJ relied on the test for sexual harassment in
employment our Supreme Court set out in Glasgow v. Georgia-Pacific Corp., 103 Wash. 2d 401,
406 -07, 693 P.2d 708 ( 1985). Under Glasgow, the four necessary elements of a sexual
harassment claim are: ( 1) the harassment was unwelcome, ( 2) the harassment was because of
sex, ( 3) the harassment affected the terms and conditions of employment, and (4) the harassment
was imputed to the employer. 103 Wash. 2d at 406 -07. Because Washington' s test for sexual
harassment in employment discrimination encompasses the federal requirements for sexual
harassment in housing, the ALJ properly applied the Glasgow four - art test to determine whether
p
a tenant has established sexual harassment in housing.
Using the Glasgow analytical framework, the Commission would have to prove that (1)
David' s conduct was unwelcome, ( 2) David' s conduct was because of Gossard' s sex, ( 3) David' s
conduct affected the terms, conditions, and privileges of the rental property (including Gossard' s
use and enjoyment of the property), and ( 4) the harassment was imputable to the landlord. The
Tafoyas do not argue that David' s conduct was welcome or that it was unrelated to Gossard' s
sex. The Tafoyas limit their argument to whether David' s conduct was sufficiently severe and
pervasive so as to affect Gossard' s use and enjoyment of the rental property.
The Tafoyas characterize David' s conduct as isolated or trivial. We agree with the ALJ
that David' s conduct was sufficiently severe to establish sexual harassment. The ALJ' s findings
E
No. 43003 -7 -II, consolidated with No. 43376 -1 - II
of fact identify at least 14 instances of inappropriate behavior by David, including physical
touching and sexually explicit comments. Gossard testified that David' s conduct made her feel
embarrassed, uncomfortable, and afraid when she was in her home. David' s conduct was not
isolated or trivial. To the contrary, his conduct was a regular occurrence while Gossard lived on
the property. David made several sexually explicit comments including one comment in which
he stated that he " made love to [her] several times" and another comment in which he stated he
thought about her while he masturbated. AR at 364. David answered the door while naked, and
he pushed Gossard onto the bed in an RV filled with his sexually explicit art.
Although not binding, the Eighth Circuit' s decision in Quigley v. Winter is factually on-
point and persuades us. In Quigley, the tenant testified that her landlord:
subjected her to unwanted touching on two occasions, made sexually suggestive
comments, rubbed his. genitals in front of her, placed several middle of the night
phone calls to her home, made repeated unannounced visits, and, on one occasion,
while [ the landlord] lay on [ the tenant' s] couch, had to be told to leave her home
at least three times before he complied.
598 F.3d at 947. Based on this testimony.,the court concluded the tenant " presented sufficient
evidence of numerous unwanted interactions of a sexual nature that interfered with [the tenant]' s
-
use and enjoyment of herhome." Quigley, 598 RM at 947. Gossard experienced similar
unwanted, sexual conduct on numerous occasions. As in Quigley, there were numerous incidents
of such conduct. Accordingly, the ALJ did not err by concluding that David' s conduct was
sufficiently severe and pervasive so as to interfere with Gossard' s use and enjoyment of the
rental property. The final element of a sexual harassment claim is whether the conduct can be
imputed to the landlord. Here, David was the landlord and directly participated in the conduct.
Therefore, he is liable and imputation is unnecessary.
10
No. 43003 -7 -II, consolidated with No. 43376 -1 - II
Faris argues that she cannot be held liable for David' s conduct because she had very little
first-hand knowledge of the situation and did not have very much contact with Gossard. But
Faris misunderstands the law. She relies on principles ofjoint and several tort liability against .
t
the marital community to support her argument. But the ALJ did not impose liability on Faris by
virtue of the marital community. Instead, Faris is liable for discrimination by virtue of her
position as a landlord.
In the employment context, liability is imputed to the employer when the employer either
participates in the harassment or the employer knew or should have known of the harassment and
failed to take remedial action. Glasgow, 103 Wash. 2d at 407. Here, Gossard told Faris about
David' s conduct, but Faris failed to investigate or take any remedial action. To the contrary,
Faris accused Gossard of initiating the contact with David and participated in the retaliation by
contacting Gossard' s ex- husband. The purpose of imputing liability is to ensure that landlords .
investigate complaints and take appropriate action to stop harassment. A landlord cannot avoid
imputed liability by simply choosing to ignore a tenant' s complaint. We hold that the ALJ
properly imposed liability on both David and Faris 5
.
FIRST AMENDMENT
The Tafoyas also argue that the ALJ erred by concluding that David' s comments were
not protected by the First Amendment. But it is well -
established that speech that constitutes
harassment is unprotected speech. Accordingly, the ALJ did not err in rejecting this meritless
argument.
5 We also note that Faris is directly liable for her retaliatory conduct, specifically, her direct
participation in contacting Gossard' s ex- husband.
11'
No. 43003 -7 -II, consolidated with No. 43376 -1 - II
In Mills-v. W. Wash. Univ., 150 Wn. App. 260, 274, 208 P. M 13 ( 2009), rev' d on other
grounds, 170 Wash. 2d 903, 246 P.3d 1254 ( 2011), Division One of this court stated:
To be explicit, none ofthe following behaviors implicate academic freedom in the
slightest, or are protected by either the First Amendment or article 1, section 5:
verbally abusing faculty colleagues with discriminatory and sexual innuendo;
harassing, intimidating,' demeaning, and insulting students outside of the
classroom; [ and] verbally abusing staff members and student assistants serving in
an administrative capacity.
Emphasis added.) Here, David' s speech can be characterized as discriminatory, sexually
explicit or sexual innuendo, and harassing. Under Mills, this type of speech is not protected
speech. As the Commission correctly points out, the case law governing harassing and
6
discriminatory speech is clear that David' s comments are not protected speech. Therefore, the
ALJ did not err in concluding that David' s comments were not protected by the First
Amendment.
EVIDENCE OF EMOTIONAL DISTRESS
Finally, the Tafoyas argue that the ALJ' s findings regarding Gossard' s emotional distress.
are not supported by substantial evidence. Specifically, the Tafoyas argue that the ALJ cannot
award damages for emotional distress without the testimony of alicensed medical professional.
But the Tafoyas rely on cases regarding the sufficiency of the evidence supporting tort claims for
negligent infliction of emotional distress which are inapplicable to sexual harassment claims.
We reject the Tafoyas argument and hold that the ALJ properly awarded damages authorized by
the WLAD.
6 The Tafoyas base their argument on.cases addressing criminal statutes meant to punish speech
speech categorized as fighting words. David' s speech is not categorized as fighting words;
therefore, the cases cited by the Tafoyas are inapplicable.
12
No. 43003 -7 -II, consolidated with No. 43376 -1 - H
RCW 49. 60. 225( 1) authorizes the ALJ to award any damages " for such relief suffered by
the aggrieved person" and damages authorized by the FHAA. Federal courts have held that
emotional distress caused by housing discrimination is a compensable injury under the
FHAA]." U.S.' v. Balistrieri, 981 F.2d 916, 931 ( 7th Cir. 1992) ( citing Seaton v. Sky Realty Co.,
491 F.2d 634, 63 6- 3 8 ( 7th Cir. 1974)). But emotional distress will not be presumed; the plaintiff
must prove that the discrimination caused actual emotional distress. Balistrieri, 981 F.2d at 931
citing Carey v. Piphus, 435 U.S. 247, 263- 64, 98 S. Ct. 1042, 55 L. Ed. 2d252 ( 1978)). If the
plaintiff s testimony "`` reasonably and sufficiently "' explains the emotional distress, the
plaintiffs testimony is sufficient to support the award of damages. Balistrieri, 981 Fad at 931-
32 ( internal quotations omitted) ( quoting Biggs v. Village ofDupo,, 892 F.2d 1298, 1304 ( 7th Cir.
1990)). Similarly, we have held that "[ a] discrimination plaintiff may seek monetary
compensation for `` actual damages,' including distress and mental anguish caused by
discrimination, and may prove such damages through nonexpert testimony." Negron v.
Snoqualmie ValleyHosp., 86 Wash. App. 579, 588, 936 P.2d 55 ( 1997) ( quoting former RCW
49. 60. 030( 2) ( 1995)) ( citing Delahunty v. Cahoon, 66 Wash. App. 829, 842, 832 P.2d 1378
1992)).
The Tafoyas' argument that Gossard was required to support her testimony with expert
medical testimony is contrary to existing case law. See Negron, 86 Wash. App. at 588. Gossard' s
testimony sufficiently explains the emotional distress that she suffered because of David' s sexual
harassment, thus there is substantial evidence to support the ALTs award of damages.
Balistrieri, 981 F.3d at 931. Here, Gossard testified that David' s behavior made her fearful for
her safety and the safety of her cat. Gossard participated in therapy to deal with the situation.
And Gossard testified, " I was put under a lot of stress in my education. I was gaining weight. I
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No. 43003- 7-H, consolidated with No. 43376 -1 - H
was not sleeping. I was afraid. I was feeling invalidated. I was humiliated. I was subjugated
sic) to things that nobody should be subjugated to, making it very stressful. " 7 Admin. Report of
Proceedings at 130. Gossard' s testimony establishes that she suffered emotional distress because
of David' s conduct, which embarrassed and humiliated her and made her afraid in her own
home. Therefore, substantial evidence supports the ALJ' s damages award for emotional distress.
In sum, the Tafoyas' arguments regarding the substantive nature of the claims are
untenable. We hold that as a matter of law, sexual harassment is an actionable claim under the
WLAD when the sexual harassment interferes with the terms, conditions, and privileges of a
rental agreement by preventing the use and enjoyment ofproperty. The proper standard for
evaluating a claim for sexual harassment is the standard our Supreme Court articulated for sexual
harassment in employment in Glasgow. The ALJ did not misinterpret or misapply the law when
she concluded that the Tafoyas violated the WLAD by discriminating against Gossard based on
her sex. And, because liability maybe imputed to a landlord who fails to take reasonable
investigative and/ or remedial action after receiving a harassment complaint, the ALJ did not err
by imposing "iability on Faris for David' s sexual harassment of Gossard. In addition, the
l
Tafoyas' claims that David' s conduct is protected by the First Amendment and that Gossard was
required to produce expert testimony to support her claim for emotional distress are contrary to
7
Subjugate means . " to bring *or hold under strict control or into a subordinate position."
WEBsTER' s THIRD INTERNATIONAL DICTIONARY, at 2276 ( 1969).
14
No. 43003 -7 -II, consolidated with No. 43376 -1 -II
Washington law.
We affirm. /
DALTON, J.P. T.
We concur:
BRINTNALL, J.
J HANsoN, A.C.J.
15