By Kate Acheson
In Loeffelholz v. University of Washington, an asbestos office program coordinator at the University of Washington, Debra Loeffelholz, alleged that James Lukehart, her supervisor from 2003 to early 2006, discriminated against her based on her sexual orientation. Loeffelholz claimed the sexual-orientation-based discrimination created a hostile work environment. Upon review, the State Supreme Court found that Loeffelholz’s claims before the enactment of the amendment adding sexual orientation as a protected class in Washington were unrecoverable because the amendment is not retroactive. However, the Court also found that a jury must resolve the questions of fact arising from the last, potentially post-amendment incident.
Shortly after Loeffelholz started work in 2003, Lukehart asked her if she was gay. After she replied yes, Lukehart told her not to “flaunt it” around him. Loeffelholz claims Lukehart thereafter created a hostile and intimidating work environment by, among other things, discussing his hatred towards others, his desire to get revenge for perceived affronts, his gun that he keeps in his vehicle, and his anger management issues.
The amendment to RCW 49.60, adding sexual orientation as a protected class, became effective on June 7, 2006. Lukehart, an army reservist, was deployed to Iraq June 25, 2006. His last day as Loeffelholz’s supervisor was on June 23, 2006. During Lukehart’s last weekly meeting before his deployment, the date of which is unclear, Loeffelholz contends Lukehart persisted in creating a hostile work environment for her when he told his group that he was “going to come back a very angry man” from Iraq.
In 2009, Loeffelholz filed suit. The trial court granted summary judgment, Loeffelholz appealed, and the appellate court reversed. Upon review, the Supreme Court found (1) the sexual-orientation amendment to the anti-discrimination statue cannot be retroactively applied, so all pre-amendment claims are not recoverable; but (2) the “angry man” comment, for which the pre-amendment claims are admissible as context, raised factual questions that a jury must resolve.
First, based on plain language and legislative history, the State Supreme Court found that the sexual-orientation amendment creates a new cause of action for discrimination and was not intended to be applied retroactively. Therefore, Loeffelholz cannot recover for pre-amendment acts:
“Before June 7, 2006, Lukehart’s sexual-orientation-based harassment was merely reprehensible, not unlawful. Loeffelholz cannot recover for conduct that was not unlawful when it was committed…”
With the retroactivity question resolved, the Court considered the “angry man” comment – whether it occurred after June 7, 2006, and whether it was discriminatory. When reviewing summary judgment claims, the Court makes all reasonable inferences in favor of the party opposing the motion. Thus, the State Supreme Court assumed in Loeffelholz’s favor that the “angry man” comment occurred post-amendment – there was a clear amount of time post-amendment, from June 7 to June 23, 2006, when the “angry man” comment could have taken place. Assuming that the comment was post-amendment, the Court also found that a reasonable jury could find the comment was discriminatory.
The nature of a hostile work environment claim allows background information to be admitted to prove the hostile intent of a comment. Thus, the State Supreme Court found the pre-amendment conduct may be considered as background evidence to prove the “angry man” comment constituted sexual-orientation-based harassment. Considering the background information, the comment could be severe enough, on its own, to establish a hostile work environment. The court concluded that it could be reasonable to infer that, although Lukehart made the “angry man” comment to a group, the comment was intended to have special meaning for Loeffelholz and was a natural extension of pre-amendment discriminatory behavior.
Because it is proper to assume the “angry man” comment occurred after June 7, 2006, and because a reasonable jury could find the comment was discriminatory, the State Supreme Court remanded for jury trial on those issues.
