(1) In 2006, the legislature amended the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, to include sexual orientation as a protected class.
(2) After the Amendment, [the Plaintiff] Debra Loeffelholz sued the University of Washington and her superior, James Lukehart (collectively ‘University’), for discrimination based on sexual orientation.
(3) [Loeffelholz] alleges the sexual-orientation-based discrimination created a hostile work environment based on a series of preamendment acts and one potentially postamendment act.
(4) The final allegedly discriminatory act–and the only act to potentially occur postamendment–occurred during Lukehart’s last group meeting before deploying to Iraq. During this meeting, he told the group that he was ‘going to come back a very angry man’ from Iraq.
(5) [The Court held] that the WLAD amendment is not retroactive and that the preamendment conduct is not actionable as it was not unlawful when it occurred.
(6) The postamendment, allegedly discriminatory comment is arguably similar enough to the preamendment conduct to survive summary judgment.
(7) [The Court] affirms the Court of Appeals only in reversing summary judgment for the University and clarify that the Court of Appeals erred in allowing recovery for preamendment conduct.
-Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012).
ISSUE #1: Does the WLAD amendment apply retroactively and, if not, is preamendment discriminatory conduct actionable?
STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION): The Court “presumes that a statute applies prospectively, unless (1) the legislature intends otherwise, or (2) unless the amendment is remedial in nature.” Loeffelholz v. University of Washington, 175 Wn.2d 264, 271, 285 P.3d 854 (Wash. 2012) (internal citations and quotation marks omitted) (emphasis added). The Court may determine if “the legislature intends otherwise” by looking to legislative history. Id. (internal citations omitted). Moreover, “a statute is not remedial when it creates a new right of action.” Id. (internal citations omitted).
(1) PLAIN LANGUAGE: The Court found that the plain language of the WLAD amendment at issue did not explicitly state that it applied retroactively; it therefore concluded that the plain language supported prospective application. Id. at 72 (internal citations omitted).
(2) LEGISLATIVE HISTORY: The Court found that the final bill report to the WLAD amendment supported prospective application. It states that “the amendment expanded the WLAD to prohibit discrimination based on a person’s sexual orientation.” Id. (internal citations omitted). The Court reasoned that the “language implies that before the amendment, WLAD did not protect against discrimination based on sexual orientation.” Id.
(3) THE MORGAN TWO-PART INQUIRY INAPPLICABLE: The Court found the Morgan Two-Part Inquiry inapplicable to this case. In Antonius v. King County, 153 Wn.2d 256, 264, 103 P.3d 729 (2004), the court approved the two-part inquiry introduced in Nat’l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)), for purposes of deciding if a hostile work environment claim is timely. Id. at 273 (internal citations omitted). Under the Inquiry, the court is to determine (1) “whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so,” (2) “whether any act falls within the statutory time period.” Id. (internal citations omitted). However, here, the Court distinguished Antonius from the instant case, pointing out that “recovery for actions outside the statute of limitations does not raise the same due process concerns as does recovery for conduct that was not unlawful when committed.” Id.
(4) PREAMENDMENT CONDUCT AS BACKGROUND EVIDENCE: The Court found that “while preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted). The Court noted that the court in Graves v. District of Columbia, 843 F.Supp.2d 106 (D.D.C.2012) recognized that conduct that is non-actionable for purposes of liability may sometimes be used for a particular purpose in support of actionable claims.” Antonius v. King County, 153 Wn.2d at 274 (citing Graves 843 F.Supp.2d at 111).
As an example, the Court explained that “earlier conduct may be relevant to prove the intent behind post-effective-date conduct.” Id. (internal citations omitted). Here, the Court examined the “totality of the circumstances” and found that Ms. Loeffelholz could use “the preamendment conduct to explain why the ‘angry man’ comment constituted sexual orientation based harassment.” Id.
The Court further concluded that their finding was “supported by the legislature’s mandate that WLAD provisions be constured liberally … to prevent discrimination that threatens not only the rights and proper privileges of the State’s inhabitants but menaces the institutions and foundation of a free democratic state.” Id. (internal citations omitted).
The Court held that based on the plain language and legislative history, the Washington Law Against Discrimination amendment applies prospectively only; it is not retroactive. However, “because of the unique nature of a hostile work environment claim, the unrecoverable preamendment conduct is admissible as background evidence to give context to any postamendment discriminatory conduct.” Id. at 278.
ISSUE #2: Is a single comment made postamendment a discriminatory act?
HOSTILE WORK ENVIRONMENT: To establish a prima facie hostile work environment claim, the plaintiff must allege facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer. Id at 275 (internal citations and quotation marks omitted) (emphasis added).
TERMS & CONDITIONS OF EMPLOYMENT: The third element is met “if the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, to be determined with regard to the totality of the circumstances.” Id. (internal citations and quotation marks omitted).
TOTALITY OF THE CIRCUMSTANCES: The Court considered the totality of the circumstances, including the preamendment conduct, and concluded that “the ‘angry man’ comment establishes a prima facie hostile work environment claim.” Id. at 275-76. The Court determined both that “the standard for linking discriminatory acts together in the hostile work environment context is not high” and that “the acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. (internal citations omitted).
In this case, the Court found that Mr. Lukehart made the “angry man” comment to a group, but “he conceivably intended it to have special meaning for Ms. Loeffelholz.” Id. at 276. Ms. Loeffelholz “knew that Lukehart disliked lesbians and that he had anger management problems as illustrated by his previous comments that he had a volatile temper and kept a gun.” Id. The Court concluded that “taken in the context of such comments, a reasonable juror could infer from these events that the “angry man” comment was a natural extension of the conduct that made up the preamendment oppressive work environment.” Id. at 276-77.
A SINGLE COMMENT MAY BE ENOUGH: The Court found that “the preamendment conduct establishes that the ‘angry man’ comment could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 277.
The Court found that preamendment conduct establishes that one comment–the “angry man” comment in this case–“could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 278. Thus, assuming the “‘angry man’ comment was made postamendment, a genuine issue of material fact exists that prevents summary judgment.” Id. Accordingly, the Court affirmed “only the Court of Appeals reversal of summary judgment, and reversed its reasoning, which allowed recovery for preamendment conduct.” Id.
NOTABLES & IMPLICATIONS:
HOSTILE WORK ENVIRONMENT
[~1] The standard for linking discriminatory acts together in the hostile work environment context is not high”; “the acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. at 275-76 (internal citations omitted).
[~2] While preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted). Thus, it appears that comments occurring outside of the statute of limitations in other cases might be analogized to preamendment conduct in this case.