On January 31, Gov. Christine Gregoire signed into law amendments to the Washington Law Against Discrimination (WLAD) that will make it illegal for many employers to discriminate on the basis of sexual orientation. The law is the culmination of a near 30-year effort to educate the Legislature and the public on the need to end discrimination on the basis of sexual orientation, making Washington the 18th state to include sexual orientation in its laws against discrimination.
Many companies, including more than 80 percent of companies in the Fortune 500, already ban sexual orientation discrimination.1 Many localities in Washington have long had laws making discrimination based on sexual orientation unlawful. For Washington employers who have not already done so, it is time to update employment policies and practices with regard to sexual orientation and to consider appropriate training.
The New WLAD in a Nutshell
With the passage of ESHB 2661, the right under the WLAD to be free from discrimination in employment, housing, public accommodations, real estate, credit and insurance transactions, and commerce now extends to persons based on their sexual orientation.2 As defined in new act:
"Sexual orientation" means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, "gender expression or identity" means 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.3
While the law creates a new protected category, it remains the same in all other material respects. For instance, small employers with fewer than eight employees and non-profit religious or sectarian organizations remain exempt from the law.4 The law also permits employers to continue providing sex-segregated restrooms and locker room facilities.5 The damages provision remains unchanged as well.
The statute makes clear that the addition of sexual orientation does not indicate the Legislature's endorsement of any particular belief, practice, orientation or behavior.SUP>6 The new law is explicit that it does not alter statutes related to marriage.7 The law also expressly specifies that it is not to be interpreted as requiring employment goals or quotas.8
Prohibited employment practices include: (1) refusal to hire; (2) discharge or barring from employment; (3) discrimination in compensation or in other terms or conditions of employment; (4) circulating materials or making inquiries in connection with prospective employment that express any limitations or discrimination; (5) permitting harassment that creates a hostile or abusive work environment; and (6) retaliation against an individual who has opposed a practice forbidden by the WLAD.9
The law will take effect on June 7, unless it is stayed by an effort to repeal the law through voter referendum. If the law is subject to a referendum vote in November, the law must be approved by the voters and would then take effect on December 7, or 30 days after it is affirmed by the voters.10
Suggested Best Practices for Employers
Inclusion of sexual orientation as a protected class will certainly have an impact in the workplace, just as the introduction of gender and other protected classes caused a ripple when they were first introduced. Some religious, philosophical or personal beliefs clash with the law's new protections. Given these circumstances, eliminating discrimination in the workplace will require the same kind of proactive steps that human resource professionals have used in developing other non-discrimination policies and training.
Nevertheless, the challenge should not be overstated. Public opinion strongly favors equality. In a recent national poll, 76 percent of the public said they support laws to end employment discrimination based on sexual orientation, while 78 percent said they would feel comfortable working with someone who is openly gay or lesbian.11 Our state joins a long and growing list of states and companies across the country that ban discrimination based on sexual orienta-tion.12 Alaska Airlines, Amazon.com, Boeing, Costco, Microsoft, Nextel, Nordstrom, SAFECO, Washington Mutual and Weyerhaeuser are among the many Washington employers that already include sexual orientation in their non-discrimination policies. In fact, ESHB 2661 enjoyed broad support among business community leaders when it was heard before the Legislature this year.13
Eliminating discrimination on the basis of sexual orientation requires a sensitive and informed approach to workplace management. A successful employer must understand that the critical issue is not sexual behavior (which is and should remain private), but the myriad ways in which an employee's orientation affects the ordering of his or her personal life.
For example, we do not think of non-gay co-workers as "flaunting" their sexuality when they mention a date, their home, a spouse, a child or their weekend activities. But such topics often reveal sexual orientation and can be fraught with tension for closeted employees.14 This silence can sometimes make a gay employee appear cold or distant and can hurt productivity and even the bottom line. A benchmark goal for the employer should be creating a workplace environment in which lesbian, gay, bisexual and transgender (LGBT) employees feel comfortable being open about their identity.
There are a number of steps Washington employers can take to make the workplace more supportive of LGBT employees. Employers wishing to establish a gay-friendly workplace will find additional resources listed below.15 While not all of the below suggestions are mandated by the law, Washington employers are well advised to:
- Update and publicize the company anti-discrimination policy. A good policy makes clear that discriminatory conduct will not be tolerated, enumerates the types of prohibited behavior, clearly outlines the grievance procedure and commits to a prompt investigation. The policy should specify that retaliation will not be tolerated.
- Offer diversity and anti-discrimination training. Ensure that the training you do offer is useful and addresses sexual orientation, gender identity and HIV status.
- Offer complete domestic partner benefits. Wherever "spouse" is mentioned, "domestic partner" should apply as well. This may include offering health, dental and other insurance benefits as well as relocation assistance, caretaking and bereavement leave, access to employee assistance programs and pension and survivor benefits to an employee's "domestic partner."
- Support LGBT employee families. Treat the children (whether biological, adopted or step) of lesbian and gay couples as the company treats children of heterosexual employees. This may require extending childcare, parental leave, family leave and health care coverage. Explicitly invite partners whenever spouses are invited to workplace functions.
- Support a transgender employee's transition. Treat an employee's transgender status as private and confidential. Upon an employee's request, change the employee's name and sex in all personnel and administrative records, including internal and external e-mail and business cards. Permit a transgender employee to use the restroom consistent with his or her stated gender identity. Provide alternatives for other employees if they are uncomfortable.
- Support LGBT employee groups and professional associations. Encourage LGBT employees to establish workplace affinity groups, then respond to the workplace concerns they may identify. If your field has a gay professional association, encourage and fund employee membership.
- Demand a respectful workplace from all employees. Prohibit derogatory comments about LGBT employees and move quickly to discipline those who make such comments.
- Monitor hiring, promotion and disciplinary decisions. Guard against and scrutinize potential bias whether it be your own or a member of your hiring team.
Many businesses find that creating a gay-friendly workplace improves employee morale, increases productivity and boosts employer competitiveness in a tight job market. Of course, creating and maintaining a gay-friendly workplace will also make an employer less vulnerable to a discrimination suit under Washington law. And that's a good thing.
Beth Barrett Bloom is a labor and employment attorney with Frank Freed Subit & Thomas, LLP. She also is president-elect of the GLBT Bar Association of Washington and a past associate director with the National Gay and Lesbian Task Force Policy Institute. She can be reached at www.frankfreed.com. The information in this article is a summary overview only and does not constitute legal advice.
1 Marc Gunther, "Corporate America Backs Gay Rights," Fortune, April 26, 2006.
2 WLAD's protections apply to persons based on age, sex, marital status, race, creed, color, national origin, the presence of disabilities, the use of service animals, HIV status and families with children. Not all classes of individuals are protected from discrimination in all areas. See generally RCW ¤ 49.60.180 (employment); RCW ¤ 49.60.200 (employment agencies); RCW ¤ 49.60.190 (union membership); RCW ¤ 49.60.215 (public accommodations); RCW ¤ 49.60.222 (real estate, including a ban on housing discrimination against families with children); RCW ¤¤ 49.60.175, .176 (credit transactions); RCW ¤¤ 49.60.178; 48.30.300 (insurance), and RCW ¤ 49.60.030 (boycotts). See also RCW ¤¤ 49.60.205, 49.44.090 (prohibiting age discrimination); and RCW ¤¤ 49.60.172, .174 (prohibiting HIV-related discrimination).
3 RCW ¤ 49.60.040(15).
4 RCW ¤ 49.60.040(3).
5 RCW ¤ 49.60.180(3).
6 RCW ¤ 49.60.020.
7 Id. Washington law defines marriage as between one man and one woman. RCW ¤¤ 26.04.010, .020. This so-called "Defense of Marriage Act" faces a constitutional challenge in the Anderson and Castle cases now pending before the Washington Supreme Court.
8 RCW ¤ 49.60.180(1).
9 RCW ¤¤ 49.60.180, .210; Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321 (1998) (harassment can be a form of unlawful discrimination).
10 Wash. Const. Art. II, Sec. 1, Para. d.
11 "Inside Out: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Public's Views on Issues and Policies Related to Sexual Orientation," Henry J. Kaiser Family Foundation (2001).
12 Gunther, supra.
13 Brad Shannon, "Sides Square off over Gay Rights Legislation," The Olympian (Jan. 18, 2006).
14 According to national statistics, 71 percent of lesbian and gay employees are out to their co-workers. But just 55 percent are open with their bosses. See Kaiser Family Foundation, supra.
15 Among the best online resources for forward-looking employers are www.hrc.org (Human Rights Campaign); www.lambdalegal.org (Lambda Legal); www.outandequal.org (Out & Equal Workplace Advocates) and www.mcca.com (Minority Corporate Counsel Association) (particularly relevant to legal employers). This article is drawn from many of these resources.
