Gay rights law not retroactive, state’s high court rules

OLYMPIA — The Washington Supreme Court ruled Thursday that the state’s 2006 expansion of the anti-discrimination law to include gays and lesbians is not retroactive.

The unanimous ruling is in response to a lawsuit filed by an employee of the University of Washington who alleged she was discriminated against by her supervisor and was subjected to a hostile work environment because she was gay. The high court said that while incidents that occurred before the law took effect cannot be retroactively remedied, they can be used in an overall hostile workplace case if the actions continued after June 2006.

The case originated in King County Superior Court, where Debra Loeffelholz sued in May 2009, alleging James Lukehart had discriminated against her.

According to court records, Loeffelholz said Lukehart asked her if she was gay shortly after she began working in the university’s asbestos office as a program coordinator in 2003. She said that when she responded that she was, Lukehart told her not to “flaunt it” around him.

Lukehart was an Army reservist and before deploying to Iraq in June 2006, he reportedly said in a meeting that he was “going to come back a very angry man.”

The King County court found in favor of the university, saying the gay civil rights law was not retroactive to when Loeffelholtz alleged the first incident. The court also found it was not reasonable to conclude the “angry man” comment Lukehart made after the law took effect was motivated by Loeffelholz’s sexual orientation.

The Court of Appeals reaffirmed that the law was not retroactive but said that did not impact Loeffelholz’s pre-2006 claim, so long as the “angry man” comment was made after the law’s effective date.

The Supreme Court, led by Justice Susan Owens, agreed with the appeals court on the issue of retroactivity but said it “erred in allowing recovery for pre-amendment conduct.”

Because the expansion of the anti-discrimination law “applies prospectively only, Loeffelholz cannot recover for acts that occurred prior to the amendment” of the law, Owens wrote. “To do so would hold the University liable for conduct that was not unlawful at the time it was committed. … Before June 7, 2006, Lukehart’s sexual-orientation-based harassment was merely reprehensible, not unlawful.”

The case now goes back to King County Superior Court.

Loeffelholz’s attorney, Mike Withey, said he was disappointed with the ruling on retroactivity, but was “very gratified that Debra Loeffelholz will have her day in court to redress the bullying and homophobic tactics of a senior manager at the University of Washington.”

Withey said that while Lukehart is no longer Loeffelholz’s supervisor, he remains employed at the university. Officials with the University of Washington did not return a phone call seeking comment, and an attorney who represented them said he couldn’t speak without authorization from the school.

When reached at his office, Lukehart would not comment on Loeffelholz’s allegations and referred questions to his attorney, who did not return a phone call.

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