Employment Law Advisory Bulletin
New Sexual Orientation Antidiscrimination Law:
What Do Employers Need To Know?
By Karen K. Russell and Roger A. Leishman
[June 2006]
As of June 7, 2006, Washington state bars discrimination on the basis on sexual orientation, gender identity, and gender expression.
The recently amended Washington state law against discrimination now bars employment discrimination on the basis of “sexual orientation” and has important implications for local employers.
While laws prohibiting discrimination in employment have existed for decades, the addition of sexual orientation as a protected status presents new issues for employers. In particular, the statute’s broad language defining gender identity and expression may require employers to examine their policies to ensure that they do not reflect gender stereotypes. In addition, although Washington has an active transgender community and is a leading center for sex-reassignment medical treatment, many employers have not yet had to address the special concerns of transgender employees.
Some of the questions that employers are asking include:
- What is “gender identity”?
- Does the new law change which benefits employers have to offer same-sex partners?
- Are dress codes now illegal?
- What about bathrooms?
- What should employers do when employees are uncomfortable with co-workers?
How has the law changed?
Washington’s Law Against Discrimination (WLAD), RCW § 49.60, prohibits discrimination in employment, credit and insurance transactions, places of public accommodation, and real property transactions. The WLAD already prohibits discrimination on the basis of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability or a disabled person using a trained dog guide or service animal. The new law adds “sexual orientation” to this list.
What does “sexual orientation” mean?
The term "sexual orientation" is defined to include "heterosexuality, homosexuality, and bisexuality” as well as “gender expression or identity.”
The primary effect of the new law is to protect lesbians, gays, bisexuals, and straight individuals from discrimination on the basis of their actual or perceived sexual orientation.
What are “gender identity” and “gender expression”?
The statute’s scope is broader than the ordinary understanding of sexual orientation (i.e., heterosexual, homosexual, or bisexual), because it also includes “gender expression or identity.” The law defines "gender expression or identity" as meaning "having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth."
As with other new laws, there is some uncertainty regarding how the new state law will be applied by the courts and the Washington State Human Rights Commission. In particular, it is not yet clear what will be covered by “gender expression or identity.”
From the language and legislative history of the law, it is apparent that the sponsors intended it to cover discrimination against transgender people, including transsexuals (individuals who have had or are in the process of having sex reassignment) and intersexuals (also know as hermaphrodites). Employers may not discriminate against such individuals on the basis of their gender identity.
In addition, the broad definition of gender expression goes well beyond just those individuals who change their sex. At a minimum, the new statute codifies existing case law that prohibits discrimination on the basis of gender stereotypes. Employers should therefore ensure that their manuals, policies, and training respect the diversity of individual gender expression.
What employment practices are covered by the law?
The WLAD, including the new provisions regarding sexual orientation, bars discrimination in hiring, discharge, compensation, and other terms and conditions of employment. The law also prohibits harassment and retaliation.
Does the new law change which benefits employers have to offer same-sex partners?
Most employee benefit plans are governed by the Employee Retirement Income Security Act of 1974 (ERISA), which pre-empts state law. Unlike WLAD, ERISA does not prohibit discrimination on the basis of sexual orientation. Thus, only those employee benefit plans that are governed by state law will be required to provide benefits without regard to sexual orientation. However, employers have the freedom under the law to adopt a definition of “dependent,” or extend coverage to domestic partners, which can result in coverage for gays, lesbians, and individuals in blended and other nontraditional families.
Do employers have to provide accommodation to individual employees based on their gender identity or sexual orientation?
Some transgender individuals have been diagnosed with Gender Identity Dysphoria, a medical condition that may be considered a disability under Washington law and may require accommodation. The circumstances under which accommodation may be required should be explored with legal counsel based on the facts of the specific situation. Employers should be aware that some employees may be members of multiple protected groups covered by the WLAD, such as gender identity and disability, or sex and marital status.
Must an employer provide a leave of absence to a transgender employee undergoing sex re-assignment treatment?
Under the federal Family and Medical Leave Act, employees are entitled to take up to 12 weeks of unpaid leave in a 12-month period when they have a serious health condition that renders the employee unable to perform the functions of the employee’s position. Under some circumstances, transgender employees may have a “serious health condition” as defined in the FMLA and may be covered by this provision.
This is a complicated, fact-specific, analysis and we encourage employers faced with a request for leave or accommodation because of a sex re-assignment surgery or other medical condition to consult with legal counsel.
How does the new law impact HIPAA regulations?
Employers should continue to comply with HIPAA as required.
What should employers do when employees are uncomfortable with a co-worker making a transition from one gender to another?
Employers should work with their employees to create tolerance and an improved understanding of the process. However, if there are complaints about discrimination, employers should act on those complaints like they would with any other allegation of workplace harassment.
Are dress codes now illegal?
One area of uncertain interpretation for employers is the issue of dress codes. Employers will want to review their dress codes to ensure that their policies comply with Washington law. Dress codes should not make illegal distinctions on the basis of gender stereotyping. If employers have a specific question about the new law or wish to confirm that their dress code reflects actual occupational requirements, they should contact legal counsel.
What about bathrooms?
Perhaps no other issue generates more questions than which bathroom can a transsexual use and what does an employer have to do to accommodate transgender employees and their coworkers during the transition from one sex to the other. The answer will depend on the specifics of each situation, including where the transgender individual is in the transition process.
What about churches and religious groups?
Religious groups are already exempt from the existing law and will continue to be exempt under the new amendment.
Does the law impact same-sex marriages?
The new law explicitly states that it does not change Washington laws regarding marriage which currently limit marriage to opposite-sex couples.
An unrelated lawsuit challenging state laws barring recognition of marriage between same-sex couples is currently pending before the Washington State Supreme Court.
Does the law endorse any particular belief regarding sexual orientation or gender?
No. The statute explicitly states that it does not endorse any particular belief, practice, orientation, or behavior. As with the existing provisions regarding religion, race, sex, etc., the law does not regulate the individual beliefs of employers or employees, only their conduct. Employers should maintain a workplace that respects all employees regardless of their sexual orientation or religious belief.
When does the law become effective?
The new law went into effect June 7, 2006. (A proposed referendum that would have postponed enforcement of the new law failed to obtain sufficient signatures to be placed on the ballot.)
What should employers do now?
Washington employers and out-of-state employers with facilities in Washington should take this opportunity to update their anti-discrimination and anti-harassment policies and their handbooks. In general, employers should avoid policies that have a disparate impact on some employees based on their sex, marital status, sexual orientation, etc., unless there clearly is a legitimate business reason for the policy. Employers should also consider training so all their employees understand the nuances of the new law.
For more information, please contact:
This advisory is a publication of the Employer Services Department of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.
Copyright © 2006, Davis Wright Tremaine LLP.
return to Advisory Bulletins main page
|
