Download sexual orientation - Educational Service District 112

RECENT DEVELOPMENTS IN THE
LAW OF EMPLOYMENT
DISCRIMINATION:
NEW PROTECTIONS FOR
SEXUAL MINORITIES
Tracy M. Miller
Attorney
CONTACT INFORMATION
Tracy M. Miller
Karr Tuttle Campbell
701 Fifth Ave., Suite 3300
Seattle, WA 98104
(206) 223-1313 (Main)
(206) 224-8097 (Direct)
[email protected]
AGENDA
Overview of Washington Law
Recent developments regarding sexual
orientation and gender identity in schools
Practical suggestions
Practice hypotheticals
Your questions
OVERVIEW OF WASHINGTON LAW
 Washington Law against Discrimination (WLAD)
 Ch. 49.60 RCW
 Prohibits discrimination in employment on the basis of sex, race ,
creed, color, national origin, honorably discharged veteran or military
status, sexual orientation, the presence of any sensory, mental, or
physical disability, or the use of a trained dog guide or service animal
by a person with a disability,
 Discrimination prohibited in schools
 Ch. 28A.642 RCW
 Applies to students and employees
 Prohibits the same discrimination, using the same definitions as Ch.
49.60 RCW
 Separate right of action that “supplements” other remedies
SEXUAL ORIENTATION AND
GENDER IDENTIT Y
NATIONAL CONTEXT
Washington law in step with national trends
Chief civil rights issue of our time
Implications for students and employees
2013 Supreme Court decisions in Windsor
and Perry
Same-sex couples have the freedom to
marry in 36 states and D.C.
Obergefell v. Hodges, etc.
NATIONAL CONTEXT
738 colleges and universities prohibit both
sexual orientation and gender identity
discrimination
Fortune 500 companies
 91% prohibit sexual orientation discrimination
 61% prohibit gender identity discrimination
Good for business - job satisfaction, job
commitment, health outcomes, recruiting
advantages
Protection of LGBTQ students is consistent
with heightened focus on preventing bullying
of all kinds
EFFECTS OF PERVASIVE DISCRIMINATION
 Poverty: t he transgender population is highly
educated, but
 If white, 2x more likely to be unemployed (rate is
14%)
 If person of color, 4x more likely to be unemployed
 4x more likely to have an annual household income
of less than $10,000
Suicide:
 Rate of non-transgender population: 1.6%
 Rate of transgender population: 41% (25 times more
likely to attempt suicide)
NO FEDERAL LAW… BUT GETTING CLOSE
 No federal law
 90% of transgender people and 40% of LGB individuals
have experienced some form of employment
discrimination in their lives
 Proposed legislation: ENDA, SSIA, SNDA
 2014 Executive Order re: fed. contractors
 No Supreme Court decision, but . . .
 Ninth Circuit relied on Windsor to hold that excluding
individuals from juries on the basis of their sexual
orientation violated the constitution and that
discrimination based on sexual orientation is subject to
heightened scrutiny
 Reasoning could apply in public employment and
admission to public schools
EMPLOYEES: TITLE VII
Title VII (federal statute that prohibits
workplace discrimination based on sex) has
been interpreted by 4 circuits and the EEOC as
prohibiting gender identity discrimination.
Several lower courts have ruled the opposite,
but most (if not all) of these decisions
occurred prior to the EEOC’s instructive ruling
that Title VII prohibits discrimination on the
basis of gender identity.
STATE LAWS
 18 states and Washington D.C. have enacted laws
that prohibit discrimination on the basis of both
sexual orientation and gender identity: This
includes Washington State
 More than 200 local municipalities (including 9 of
the country’s 10 most populous cities) have
prohibited employment discrimination on the basis
of sexual orientation and gender identity
WASHINGTON LAW AGAINST
DISCRIMINATION AMENDED
Anderson-Murray Civil Rights Bill (House Bill
2661)
Effective June 7, 2006
Amended WLAD to prohibit discrimination on
the basis of “sexual orientation” in
employment, public accommodations,
housing, insurance, and credit
JUNE 6, 2006
“Tomorrow will be a proud day in Washington.
In January, Washington took an affirmative
stand to say to gay and lesbian individuals,
moms and dads, sons and daughters,
neighbors, co-workers and friends that, like all
other people, they are free to work in an
environment absent discrimination.
Tomorrow our words become law.”
Governor Christine Gregoire
SEXUAL ORIENTATION
Heterosexuality
Homosexuality
Bisexuality
Gender expression or identity
GENDER EXPRESSION OR IDENTIT Y
“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”
UNLAWFUL DISCRIMINATION
Advertising, interviews, pre-employment
inquiries
Hiring and firing
Promoting and demoting
Pay
Terms and conditions of employment
Harassment
Benefits
PRACTICALLY SPEAKING
Benefits
“Spouse” v. other types of relationships –
OKAY, but
Still consider domestic partner benefits
Heterosexual v. homosexual – NOT OKAY
Handling religious objections by co-workers
and supervisors
NAMES, PRONOUNS, AND RECORDS
 Address by and refer to individuals as their
preferred name and gender pronoun
 Do not insist on using a “legal name,” or the name on
the person’s job application, official record, etc.
 Do not require a court order showing name change
 Do not require proof of medical treatments
 Employee badges should reflect an individual’s
preferred name
 Maintain a permanent record with each individual’s
legal name and gender, but do not disclose unless
required by law
DRESS CODES
Consider a gender-neutral dress code OR
Apply gender-specific codes consistently as
between transgendered and cisgendered
students AND
Permit employees to dress in accordance with
their gender identity, within the constraints of
the dress code adopted by the school or
district
RESTROOMS, CHANGING AREAS &
LOCKER ROOMS
Highly-publicized bathroom cases
 2013 – Coy Matthis - Colorado
 2014 – Supreme Court of Maine
 Arizona’s bathroom bill (dead for now)
Extremely emotional and stressful for
transgender individuals, many of whom report
refraining from eating and drinking during the
school or work day in order to avoid having to
use the bathroom
RESTROOMS, CHANGING AREAS &
LOCKER ROOMS
 Gender-neutral, single-stall bathrooms are ideal
(e.g., Grant High School, Portland, OR)
 Permit students and employees to use the
restroom that corresponds to their gender identity
 Never require any person (transgender or not) to
use a bathroom that he or she isn’t comfortable
using; i f an individual would like increased privacy,
offer an alternative that is safe, reasonable, and will
not stigmatize or identify.
EMPLOYER ACTION ITEMS
Revise personnel policies and employee
handbooks to prohibit sexual orientation
discrimination
Train managers about prohibited
discrimination and harassment
Interview techniques
Equal treatment
Handling co-worker harassment
EMPLOYER ACTION ITEMS
 Include sexual orientation and gender identity
issues in anti-harassment trainings for employees
 Develop strategies for accommodating
transgendered employees before you need them
 Review all company benefit plans and consider
maintaining domestic partner benefits
 Take advantage of the WHRC compliance
checklist and best practices:
http://www.hum.wa.gov/Publications/SelfAssessments.html
JAN
 Legal name: John Smith (transfemale)
 Maintenance worker at No Frills School District
 Dress code for maintenance workers:
 requires blue overalls
 prohibits jewelry of any kind
 requires no longer than shoulder length hair
 No Frills School District benefit plan includes employer -paid
health care premiums for “spouses” and “dependents”
 Jan and Louise are married
 They have one biological child, Kim
 Louise has a child, Jessie, by a different father
SAMANTHA, JOE & MARY
 Teacher s at Libelous Elementar y School
 Involved in a romantic relationship that includes:
 Public displays of affection
 Use school computers to exchange love notes, off -color jokes, and nude selfies
 Another teacher, Mar y, who is devoutly religious, sees Samantha and
Joe come out of the ladies’ room together and spreads rumors they are
having an af fair.
 Principal Pauline directs:
 Samantha and Joe to stop seeing each other, or she will transfer Joe
 Joe to stop using the ladies’ room
 Mary to stop spreading rumors or she will be fired
 Claims




All three employees file sexual harassment claims
Mary files a religious discrimination claim
Joe files a gender identity discrimination claim
Samantha files a retaliation claim
QUESTIONS
?