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WASHINGTON STATE HUMAN RIGHTS COMMISSION (WSHRC) GUIDE TO SEXUAL ORIENTATION, GENDER IDENTITY, DISCRIMINATION, and WASHINGTON STATE LAWS Applicable to employers Who is considered an employer? The term ―employer,‖ for the purposes of this law includes persons or organizations that employ eight or more persons and does not include non-profit religious or sectarian organizations. The term ―employee‖ does not include an individual employed by his or her parents, spouse, or child, or in the domestic service of any person. Employment agencies and labor organizations are also subject to this law. Can an employer refuse to hire or fire an individual because of that person’s sexual orientation or gender identity or expression? No. Employers may not consider sexual orientation or gender identity or expression when making hiring, firing or other employment related decisions. Employers are also prohibited from discrimination in compensation and other terms of employment based on sexual orientation or gender identity or expression. When do employers need to be in full compliance of the new jurisdiction? Covered entities should begin to comply immediately. Will this law require that an employer hire a certain number of gay and transgender people? No. In fact, RCW 49.60.180 says ―That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.‖ However, hiring practices must not discriminate based on sexual orientation to prevent a company from hiring a people of a certain sexual orientation. The Washington State Human Rights Commission encourages diverse and inclusive hiring practices. Is an individual protected if an employer thinks the employee’s sexual orientation is different than it really is and acts on the perception? Yes. It is illegal for an employer to discriminate against someone based on perceived sexual orientation, even if the perception is wrong. For example, it would be a violation of the law if an employer assumes a man is gay and discharges him because of that perception. Is an employer who provides medical benefits for spouses also required to provide the same benefit for domestic partners in light of the new inclusion of sexual orientation as a protected class in Washington? If benefits are provided purely and solely for spouses (that is to say, on the basis of a legal marriage relationship recognized by the State of Washington), then benefits do not have to be provided for domestic partners because of the new sexual orientation statute. This is because the new statute does not address same sex marriage. However, if benefits are provided to domestic partners of different sexes (that is to say, in a non-marriage domestic partner relationship), then the provision of those benefits cannot discriminate on the basis of sexual orientation. Our company will be extending benefits to unmarried same sex couples. Can we ask for “proof” of a same sex couple’s relationship? The statute explicitly does not address same sex marriage. If a company extends benefits to unmarried different sex couples, then the questions asked of unmarried same sex couples should be of the same type. What impact will the new law have on the fact that my domestic partner's benefits are taxed and my married co- worker' s benefits aren't? This jurisdiction does not affect marriage or the federal benefits extended to married couples. The Internal Revenue Service (IRC Title 26, Subtitle A, Chapter 1, Subchapter B, Part V, Section 152) defines dependents and generally does not include a domestic partner as an eligible dependent. Thus, employers are obligated to report the fair market value of the domestic partner coverage as income to the employee and the employee must pay income tax on that money. 11/2006 www.hum.wa.gov 1-800-233-3247 or TTY 1-800-300-7525 2 Does the new jurisdiction cover harassment by co-workers? The new statute covers harassment by co-workers that the employer knows or should have known about, and that creates a hostile working environment for the victimized employee. To determine whether a hostile working environment exists, we would look at such factors as severity, pervasiveness, egregiousness, and frequency of the adverse acts, and whether the actions were based on the victim's sexual orientation or perception of sexual orientation. The type of working environment is also important. In some types of workplaces, everyone treats everyone else with raw and crude language. We would also look to see if the conditions of work had been changed by the harassment, and whether the employer had taken appropriate action to stop the harassment. Employers should also have anti-discrimination policies in place. What financial penalties can be brought against employers for allowing harassment or discriminatory behavior against employees because of their sexual orientation? Generally, is one awarded lost wages or is there a financial penalty that people can bring to bear? When our cases are adjudicated by administrative law judges, and a finding of discrimination is made, a wide range of penalties can be imposed by the judge. We should be able to pursue almost any remedy available at the federal court level under WAC 162-08-298 except the degree of general damages. See also RCW 49.60.250(6) and (7). General damages are limited: the WAC rule cited above prohibits punitive damages and the statute puts a $10,000 limit on humiliation damages. RCW 49.60.250(5). Other than that, the WSHRC should be able to pursue a range of employment "make whole" remedies, such as back wages, front wages, policy change, promotion, hire or reinstatement, accrued leave or other lost benefits, non-retaliation, and ceasing and desisting illegal acts and implementation of policies. Our state law states that we are to be primarily concerned with achieving systemic changes in discriminatory policies and practices. In many cases where we find discrimination or where a case settles due to pre-finding settlement, the complainant does receive some money. However, the amounts are rarely of the very large size that people read about in the newspapers. What is a bona fide occupational qualification? Under the Washington Law Against Discrimination, there is an exception to the rule that an employer may discriminate on the basis of a protected status; that is a if a bona fide occupational qualification (BFOQ) applies. The BFOQ exception is applied narrowly to jobs for which a particular quality of protected status will be essential to or will contribute to the accomplishment of the purposes of the job. Requests for BFOQs must be made to the WSHRC, and cannot be instituted before approval is obtained. BFOQs are handled on a case by case basis, and are subject to strict scrutiny. We do not at this time know of any circumstances where a BFOQ would be granted under the sexual orientation protections of the Washington Law Against Discrimination. Can an employer ask about an applicant’s sexual orientation? An employer may not make any inquiry in connection with prospective employment that expresses any limitation, specification, or discrimination as to sexual orientation or gender expression/ identity, or any intent to make such limitation, specification, or discrimination. Because an applicant’s sexual orientation and gender expression/ identity is not a permissible consideration in employment, an employer should have no reason to inquire about the sexual orientation of any applicant. By the same token, if an employer is asked to give a reference for a former employee, under no circumstances should the employee’s sexual orientation or gender expression/ identity be disclosed. The WSHRC discourages any pre-employment inquiries that might be used as proxy measures for discriminatory information. ―Lifestyle‖ questions might be used in this way. How does a company’s dress code apply to transgender employees? If an employer has a gender–specific dress code, employers should permit employees to comply with these provisions in an appropriate manner that is consistent with their gender expression or identity. Employers may ask transitioning employees—who are often required by their counselors to ―present‖ as the gender to which they are transitioning before undertaking any surgical procedures—to present consistently as this gender throughout the transition. Generally speaking, employers have a right to establish employee dress and grooming guidelines during work hours if they are reasonable and serve a legitimate business purpose. Such a purpose may include safety, such as requiring employees to wear closed toe shoes, goggles or gloves. Certain professions, such as law enforcement, fire departments and emergency response personnel, require employees to wear uniforms and/or protective clothing so that they are 3 clearly recognizable to the public and stay safe. Other employers implement dress codes in order to maintain a certain image with customers and competitors, as long as the codes do not unduly burden one sex. Dress codes should accommodate religious beliefs where safe. What is the employer’s obligation regarding restrooms? If an employer maintains gender-specific restrooms, transgender employees should be permitted to use the restroom that is consistent with the individual’s gender identity. Where single occupancy restrooms are available, they may be designated as ―gender neutral.‖ All employers need to find solutions that are safe, convenient and respect the transgender employee’s dignity. Will a transsexual employee require specialized medical treatment? Transsexuality is a medical condition that is clinically termed ―gender identity disorder.‖ Transition, or change of gender presentation and physical gender characteristics, is a medically appropriate and necessary treatment for this condition as defined by the Standards of Care for Gender Identity Disorders, published by the Harry Benjamin International Gender Dysphoria Association. Those with this medical condition who desire to pursue a medical avenue are required to undergo a number of medical treatments to support their transition. These may include therapist visits, doctor’s office visits, electrolysis/laser hair removal, hormone therapy, and major surgeries. An employer should treat a transgender employee’s request for time off from work for medical treatment related to his or her transition no differently than a request for time off related to any other medical condition. Will I be required to change the name and/or sex of a transitioning transsexual employee in company records? Employers should ask a transgender employee what name and sex-specific pronoun he or she prefers, and use them consistently. Legal company records should reflect the employee’s legal name. If that name is not consistent with the employee’s gender presentation an employer can still ensure that all (non legal) references to the employee’s name and gender (especially e-mail, photo ID, organization charts and directories, and workplace signs) are consistent with the employee’s gender identity and expression. When an employee transitions, what are my responsibilities with respect to my other employees? Many co-workers may have never met a transgender person. They may have misconceptions about the need to transition or appropriate behavior towards transgender co-workers. As is the case with sexual harassment, employers are responsible for non-discrimination, maintaining a non-hostile work environment, establishing clear policies on gender identity and expression, and educating all employees as to the policies. Co-workers may need guidance on appropriate use of names and pronouns; restroom use policy; discretion as to an employee’s transgender status; and, of course, the unacceptability of harassment and discrimination against their transgender co-workers. Bringing in a consultant to provide training on gender identity sensitivity and awareness has been helpful to many companies, and the WSHRC has a list of such resources for employers. What should an employer do with respect to background checks or references for transgender employees? Transgender job candidates who have already transitioned and changed their name may have worked, gone to school, or established credit in their former name. A background check or reference may disclose this name. Employers should keep in mind that the law forbids discrimination based on gender identity and expression, and that the use of a different name occurs for many reasons. If it is unavoidable that an employer asks for previous names, the employer should take care to treat the candidate exactly as any other candidate whose name has changed would be treated. An employer may be asked to give a reference for a former employee who has transitioned or changed their name. The employee’s former name may not match the new name expected by the person checking the reference. In this case, use the person’s new name and preferred pronouns. If asked, the former name may be confirmed. Because gender identity and expression are unlawful considerations in employment the former employer may not disclose the employee’s transgender status when giving a reference. Can an employer ask people to identify their sexual orientation or gender identity? Washington State law does not require businesses to have a diversity policy, nor does it require that employers inquire about sexual orientation or gender expression/identity. If a business has a diversity policy in place, and that policy covers sexual orientation, employees could be asked to identify their sexual orientation and gender identity under limited circumstances, such as to monitor the success of the diversity policy. If the information was gathered through voluntary participation, held confidential, not used to harm the employee in any way, and was treated the same as other 4 demographic information (such as race, age, sex), then the employer could ask employees to self-identify their sexual orientation and gender expression/identity. We do not recommend such self-identification as a best practice. For some other protected classes under the Washington Law Against Discrimination, self-identification may be advisable or even necessary to obtain services, such as for a reasonable accommodation request by an applicant or employee with a disability. My workplace hosts an annual blood drive. I am a gay male who would like to donate blood. Will the new law allow me to give blood? Sections 21 CFR 610 and 640 regulate the United States Food and Drug Administration’s (FDA) blood donor eligibility standards. These regulations specify that men who have had sex with men since 1977 are not considered eligible to donate. There are also several other groups of people not eligible to give blood. Eligibility is based on a wide variety of criteria including travel, behavior, and medical history. The new jurisdiction will not impact the FDA’s decisions. My workplace hosts an annual blood drive. I feel really pressured to give blood, and would like to, but cannot because I am gay. I feel this is discriminatory treatment. What are my rights in this situation? An employer can encourage but not require its employees to give blood, if the result would be discrimination. Managers and supervisors should be especially aware of the sensitive issues that may arise in workplace blood drives. Managers and supervisors should make it clear that it is inappropriate for co-workers to harass or pressure someone who can not or chooses not to give blood. Depending on the situation, it might be helpful to let your manager or supervisor know why you feel pressured and discriminated against. You could also offer suggestions for improvements in future workplace blood drives. As someone in a same-sex relationship, am I allowed leave to take care of my partner’s mother who is ill? The Family Medical Leave Act of 1993 (FMLA) allows legally married, opposite sex couples to obtain leave up to 12 weeks to care for a spouse or parent under certain circumstances, such as a serious illness or the birth of a child. Under General Requirement and Leave Requirements (Sections 101 and 102), the FMLA does not extend the benefit to unmarried couples, regardless of sexual orientation, in situations in which an employee’s partner or partner’s parent is ill. In certain circumstances, the employee may be eligible to take leave to care for a legally adopted child or foster child. However, if an employer has a policy to allow unmarried heterosexual couples leave to care for a partner or a partner’s parent, the same benefit must be equally extended to all employees, including those in gay or lesbian relationships.