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April 8, 2013

Conduct Before Protection Against Sexual Orientation Discrimination is Admissible

By A. Janay Ferguson

It would be unfair to allow retroactive application of the amendment.

Conduct that occurred before the amendment of the Washington Law Against Discrimination (WLAD), which added sexual orientation as a protected category in 2006, is admissible to prove the discriminatory nature of such conduct occurring after amendment, even though the amendment is not retroactive.

In Loeffelholz v. University of Washington, 175 Wn. 2d 264, 285 P.3d 854 (2012), the plaintiff alleged that her supervisor maintained a hostile work environment based on sexual orientation.  Much of the conduct underlying her complaint occurred between 2003 and 2006, before the WLAD was amended to provide protections based on sexual orientation.

The conduct included a supervisor (also personally named as a defendant) asking whether the plaintiff was gay and instructing her not to “flaunt it” around him. Although this was the only explicit remark regarding sexual orientation, the plaintiff alleged the remark injected hostility and intimidation into the work environment because the supervisor reported he kept a gun in his vehicle and had anger management issues.  The plaintiff’s supervisor also regularly discussed his hatred toward others and desire to get revenge.

The supervisor also took direct actions affecting the plaintiff’s employment.  These actions included revoking her flexible work schedule and denying her overtime requests. The plaintiff contended she was denied training opportunities and employment evaluations, despite requests for them.

Only a single act of discriminatory conduct was alleged after the WLAD was amended.  It occurred in a group meeting shortly before the supervisor returned to active military service in Iraq.  During the meeting, the supervisor told the group that he was “going to come back a very angry man” from Iraq. The plaintiff also learned after her supervisor left that he had apparently asked other employees for information regarding her so that he could fire her. Similarly, she discovered he told other employees that he disliked her because she was gay.

The Washington Supreme Court examined two issues.  First, it reviewed whether the sexual orientation category of protection was remedial in nature. Second, the Court evaluated whether pre-amendment conduct provided evidence supporting a post-amendment claim of sexual orientation discrimination.

The Court answered the first question in the negative.  It concluded WLAD’s protection for sexual orientation did not apply retroactively because it was not remedial in nature.  Further, it concluded the plain language and legislative history of the WLAD amendment showed that it was prospectively only. Pre-amendment conduct is not actionable as it was not unlawful when it occurred. Retroactive application of the amendment would violate an employer’s due process rights.

However, the Court determined that the allegedly discriminatory comment made post-amendment was arguably similar enough to the pre-amendment conduct to survive summary judgment. It held pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.

The Supreme Court agreed with the superior court that a reasonable jury could infer that the supervisor’s “angry man” comment was a natural extension of pre-amendment conduct, the supervisor’s dislike of lesbians and his anger problems, as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.

Focusing on conduct straddling the effective date of the amendment that made the conduct at issue unlawful, the Court relied on several federal precedents to conclude that even though the pre-amendment conduct was not recoverable, it was still admissible as background evidence proving why the post-amendment conduct should be considered discriminatory.

Allowing the plaintiff to rely on pre-amendment conduct to prove intent behind post-amendment conduct avoids forcing her having to suffer through an entirely new series of discriminatory acts to establish a hostile work environment.

Additionally, the Court decided such a result is supported by the legislature’s mandate that WLAD provisions “be construed liberally,” to prevent discrimination. The Court found its holding struck a balance between the liberal construction required by the legislature and the due process interests implicated by retroactive application.

From a practical perspective, the plaintiff was precluded from recovering damages from the effective date of the amendment because a contributing act post-amendment would illustrate that the cloud of a hostile work environment continued to hang over her employment post-amendment.

Rather, the pre-amendment conduct should only be used to establish that the “angry man” comment could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.

The Court was careful to acknowledge that a single act of harassment is rarely enough to establish a prima facie claim for a hostile work environment, but explained that the unique facts of plaintiff’s case justified its conclusion that one comment was sufficient to create a genuine issue of material fact preventing summary judgment in this case.

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