                                                                                                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.
                                                            2
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.
                                                            4
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 Wn.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 Wn.2d 329, 341, 190 P. 3d 38 ( 2008)).                         We review conclusions


of law de novo. Timberlane, 122 Wn. 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 Wn.2d 203, 214, 87 P. 3d 757 ( 2004)


 citing Marquis v. City ofSpokane, 130 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn. App. 579, 588, 936 P.2d 55 ( 1997) (       quoting former RCW

49. 60. 030( 2) ( 1995)) (   citing Delahunty v. Cahoon, 66 Wn. 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 Wn. 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

                                                          13
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).
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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.




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