Sexual orientation nondiscrimination became effective and part of the Washington State Law Against Discrimination (RCW 49.60) on June 8, 2006.The new law (RCW 49.60.040) says sexual orientation “means heterosexuality, homosexuality, Bisexuality, and gender expression or identity. As used in this definition, gender expression or identity means having or being perceived to have 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.”
Below is the Companion Guide that explains the
anti-discrimination law,
Does this law only protect gay people?
No. Everyone has a sexual orientation and everyone has a gender identity.
Everyone will have equal protection under the law with regard to sexual orientation. Although gay, lesbian, bisexual, and transgender individuals are statistically the
most frequent targets of sexual orientation discrimination, the law protects heterosexual persons from discrimination on the basis of sexual orientation as well.
For example, the law will protect a heterosexual person who is discriminated against in employment because he or she is heterosexual.
What is “gender expression or identity”?
Gender identity or expression is defined in state law 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.” An interchangeable term you may hear “transgender.” This term is a common
umbrella one for a broad range of people who experience and/or express their gender differently from what most people expect – either in terms of expressing a gender that does not match the sex listed on one’s original birth certificate, or physically changing one’s sex (transsexuals). It also includes people who are cross -dressers or otherwise gender non-conforming. Gender identity and expression Also includes males and females who do not express their gender in stereotypically masculine or feminine ways – e.g. through dress or behavior.
Applicable to insurers
What is the responsibility of insurers with respect to sexual orientation?
Sexual orientation, which includes gender identity and expression, is not a permissible consideration in insurance. Insurers may not refuse to issue or cancel or decline to renew insurance coverage on the basis of sexual orientation, nor may insurers offer different amounts of benefits payable, terms, rates, conditions, or types of coverage on the basis of sexual orientation.
May an insurer discriminate on the basis of sexual orientation where bona fide statistical differences in risk or exposure have been substantiated?
No. Although state law allows insurers to use actuarial distinctions in coverage on the basis of sex, marital status, or handicap, no such exception exists for sexual orientation. No discrimination on the basis of sexual orientation is permissible.
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 organzations 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. There is an exception for bona fide occupational qualifications. Employers are also prohibited from discrimination in compensation and other terms of employment based on sexual orientation or gender identity or expression.
What is a bona fide occupational qualification?
To qualify as a bona fide occupational qualification (BFOQ) an employer must demonstrate that a definable group/class of employees would be unable to perform the job safely and efficiently or that it was impossible or highly impractical to consider the qualifications of each such employee and that the bona fide occupational qualification is reasonably necessary to the operation of the business. 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.
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 any intent to make such limitation, specification, or discrimination. Because an applicant’s sexual orientation 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 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.
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.
Below is the Washington State law that prohibits discrimination based on orientation and gender in a number of settings along with its companion guide for employers.
