Personnel(ly) Speaking

A Monthly Newsletter from

Personnel Management Systems, Inc.

June 2006

Discrimination based on sexual orientation:

does this affect your business?

 

What law?

Did you know that several states, cities, and counties now have laws or ordinances prohibiting workplace discrimination based on sexual orientation?  Even though no federal prohibition exists, there appears to be a trend toward enacting legislation in this area. 

 

The State of  Washington recently enacted House Bill 2661, which added sexual orientation to the categories already protected under the Washington Law Against Discrimination.  The new law defines sexual orientation as “heterosexuality, homosexuality, bisexuality, and gender expression or identity.”  (Gender expression or identity refers to any employee who expresses or identifies themselves with a gender other than the one assigned to them at birth, including transsexuals and transvestites.)

 

What is prohibited?

Under these laws, it is typically unlawful to use sexual orientation to:

  1. Refuse to hire a job applicant.
  2. Discharge or bar an employee from a job.
  3. Discriminate in compensation or in other terms or conditions of employment.
  4. Print, circulate, or use any discriminatory statement, advertisement, publication, or job application form.
  5. Make any inquiry that is discriminatory in connection with prospective employment.

 

If an employee or a job applicant feels that his or her rights have been violated and files a claim, the possible repercussions a company may face include payment of back pay, reinstatement of the employee, a training requirement to eliminate the discriminatory practice, and payment of damages for emotional distress.

 

Does this law apply to your company?

Be aware of your individual state and local regulations. Although discrimination based on sexual orientation is not yet prohibited by federal legislation, this is an up and coming issue.  Washington State’s new law applies to all employers unless you have fewer than eight employees or are a nonprofit religious or sectarian organization.  However, even if this specific legislation does not apply to your organization, it is prudent to recognize this law to avoid claims of wrongful termination in violation of public policy.

 

What action should your company take?

If your state or local government has enacted such regulations, they likely will affect your organization in the following areas:

  • Review and revise your Employee Handbook and any other written policies that state the company’s commitment to providing a work environment free from harassment and discrimination.  These policies should be re-written to include sexual orientation as a protected class.  This may include several sections and policies within your Employee Handbook such as Equal Employment Opportunity, unlawful discrimination and harassment, and personal appearance policies.  You should also review any documents that include your Equal Employment Opportunity policy such as employment applications, Affirmative Action Plans and job advertisements for open positions.
  • Review your Dress Code.  As these laws are enacted, employers and employees will likely have questions related to dress codes; hopefully, state and local governments will quickly address those questions.  Washington’s Human Rights Commission posted the following guidance:  “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 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 when safe.”
  • Train supervisors and managers on how these laws affect your workplace.  It is essential that managers understand that it is the company’s intention to comply with all employment-related laws.  Make sure they are aware of and understand any revisions to company policies and dress codes.  If managers have questions or concerns they should know who they can contact to discuss these issues.  Management modeling respectful and non-discriminatory behaviors will have the greatest affect on your workforce.

What’s next?

In addition to Washington, California, New York, Illinois and several other states, counties, and cities have enacted similar legislation that protects the rights of citizens in relation to sexual orientation, gender expression or identity.  Determining your obligations may not be easy; for example while Oregon has not enacted a state law in this area, several cities and counties in Oregon have ordinances that include sexual orientation as a protected class. 

 

Whether or not these laws currently apply to your business, the best advice we can give you in this area is to prohibit sexual orientation discrimination and stereotyping in your workplace and eliminate it from your company culture.  Set the expectation that all employment decisions be based on an individual’s qualifications, experience, and past performance.

 

For specific advice and help regarding employee relation issues or reviewing your handbook or dress code, call Personnel Management Systems, Inc.

 

Personnel(ly) Speaking is a monthly comment on HR issues of importance.  It is intended to provide general information and must not be construed as legal advice.  Reproductions are allowed as long as credit for this information is given to PMSI.  We welcome your comments, questions, and concerns.  © PERSONNEL MANAGEMENT SYSTEMS, INC., Corporate Office (425) 576-1900, Colorado Office (720) 497-0200, www.hrpmsi.com.