The Washington Legislature added sexual orientation as a protected class under the Law Against Discrimination in 2006. This week, the Washington Supreme Court issued its first decision on this new protected class, holding that it did not create retroactive claims, but that discriminatory conduct before the amendment could be used to support claims afterwards.

In Loeffelholz v. University of Washington, program coordinator Debra Loeffelholz sued the university and her former supervisor based on several alleged pre-amendment acts and one post-amendment act. Specifically, she claimed that between 2003 and 2006, her supervisor maintained a hostile work environment based on sexual orientation. The conduct included asking her about her sexual orientation, demanding that she not “flaunt it” around him, discussing his hatred toward others and thoughts of revenge, and discussing a gun he kept in his vehicle. This conduct occurred before the WLAD was amended to include the new protected class. The single alleged act of discrimination by this supervisor after the WLAD amendment occurred right before the supervisor was deploying to Iraq. In a group meeting, he claimed he would “come back a very angry man” from Iraq. The trial court dismissed the case on the grounds of statute of limitations, three years under the WLAD. The court first held that the retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application. However, the Court held that pre-amendment conduct could be admissible as “background evidence” to prove why the post-amendment conduct is discriminatory. The Court then analyzed the single post-amendment statement. When considering the totality of the circumstances, which included the pre-amendment conduct, the Court concluded that the “angry man” comment established a prima facie hostile work environment claim. The Court noted that Ms. Loeffelholz described this comment during a deposition as being an example of one of the supervisor’s allusions to “getting people” or to his military training. The court held that a reasonable jury could infer that this comment was a natural extension of earlier comments for purposes of summary judgment.

This case serves as a reminder to employers both of the importance of sexual orientation as a protected class, and the importance of appropriate workplace conduct that is not yet protected. Employers are encouraged to train their workforce on respectful communications, including (but not limited to) issues involving a currently protected class.