Labor and Employment Law Alert: Washington's Law Against Discrimination to Include Sexual Orientation and Gender Expression or Identity
On Friday, January 27, 2006, the Washington State Legislature amended Ch. 49.60, RCW, Washington’s Law Against Discrimination ("WLAD"), to prohibit discrimination on the basis of "sexual orientation" in addition to previously recognized protected categories such as race, age, gender and disability. The amendment will become effective ninety days after the governor’s signature, expected this week.
The term "sexual orientation" is defined to include "heterosexuality, homosexuality, bisexuality, and gender expression or identity." The term "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." What is actually encompassed by the term "gender expression and identity" will undoubtedly be the subject of future litigation, but it may be given a broad reading to include others, such as, for example, transsexuals. The new statute expressly does not modify state marriage laws or address issues such as same-sex marriage or civil unions.
Washington joins California and Oregon which had already protected sexual orientation by statute or court ruling. 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, established protections for "gender expression or identity" as broad as those now contained in the WLAD.
Washington employers, including employers based in other states but with facilities in Washington, 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 training in this area, to familiarize all employees with the coverage of the new law.