Originally published February 7, 2006
Last week, the Washington State Legislature amended Washington's Law Against Discrimination ("WLAD"), adding sexual orientation to the list of prohibited categories of discrimination in housing and employment. The amendment will become effective ninety days after the governor's signature, expected this week.
The law defines "sexual orientation" to include "heterosexuality, homosexuality, bisexuality, and gender expression or identity." "Gender expression or identity" is in turn defined as "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." This term, "gender expression and identity," will certainly be the subject of future litigation. Prudence suggests it should be given a broad reading to include others, such as, for example, transsexuals. The new statute expressly does not address state marriage laws or issues such as same-sex marriage or civil unions.
Washington joins California and Oregon in its inclusion of sexual orientation as a protected class. A number of Washington cities and counties already had ordinances in place prohibiting discrimination on the basis of sexual orientation, including Seattle, Tacoma, and Spokane, and King, Snohomish and Pierce counties. None of these local jurisdictions, however, had established protections for "gender expression or identity" such as the amendment to the WLAD. This is a far broader category than had previously existed in any Washington jurisdiction.
Washington employers can look to California, in particular, for trends that will likely come from this amendment. California's Fair Employment and Housing Act (the "FEHA") prohibits discrimination against any person because of his or her sexual orientation, which includes "heterosexuality, homosexuality or bisexuality," as defined by statute. [Cal. Gov. Code section 12926(p).] In 2005 California expanded domestic partner law through Assembly Bill 205, known as the "California Domestic Partner Rights and Responsibilities Act" (DPRRA"), which went into effect January 1, 2005. The DPRRA significantly affected the obligations of employers under California law as it granted registered domestic partners the same rights, benefits, duties and responsibilities that spouses have under California law. The DPRRA, provides:
"Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities and obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as they are granted and imposed upon spouses."
Thus, California employers are obligated to ensure that equal benefits are provided to registered domestic partners, including those provided under the state leave regulations, the California Family Rights Act ("CFRA"). To qualify as a "registered domestic partner" both individuals must file a declaration of domestic partnership with the state and satisfy specific requirements. However, since the California law is in conflict with existing federal law, employers are faced with conflicting obligations when faced with issues or benefits governed by both federal and state regulations, including the medical leave regulations.
Therefore, it will be interesting to monitor how Washington will proceed in its application and interpretation of existing and potential future regulations as they related with the rights of domestic partners and sexual orientation protection.
HOW CAN DORSEY HELP:
- Employers, including employers based in other states but with facilities in Washington and California , should review and revise their policies and practices, in particular their anti-discrimination and anti-harassment policies and practices, to bar discrimination on the basis of sexual orientation, including gender expression and identity.
- Employers should also consider providing additional training in this area, to familiarize all employees with the coverage of the new law.
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