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Legal Alert

New and Pending Legislation Impacts Oregon and Washington Employers


Recent legislation in Oregon and Washington will have a major impact on all Northwest employers, and there are likely more changes on the immediate horizon. This Legal Alert will point out the most significant changes to the law in both states.


Sexual Orientation Discrimination Prohibited
On May 9, 2007, Oregon Governor Ted Kulongoski signed into law legislation prohibiting discrimination based upon sexual orientation in employment, housing and public accommodation. The law is slated to go into effect January 1, 2008, but the legislation is likely to be brought to a public vote through a referendum in the upcoming November election. That would delay implementation and could lead to voters striking down the law altogether.

The new law prohibits sexual orientation discrimination similar to current Oregon law that prohibits discrimination based on race, color, sex, marital status, age, national origin or religion. Although most Oregon employers have recognized the importance of treating employees of all sexual orientations equally since the 1998 Oregon Court of Appeals opinion, Tanner v. OHSU, this law will now ensure such protection and will likely lead to increased litigation.

The statute defines "sexual orientation" as including "actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth." The "gender identity" component of this new law protects those employees who more closely identify as members of the opposite sex, and is not simply limited to pre and/or post operative transgendered persons.

What this law means for employers
Now is a good time for employers in Oregon to examine their employment applications, job descriptions, handbooks, policies and other documents which reference equal employment opportunity. You should extend harassment protections to include sexual orientation and gender identity, or ensure that sufficient "catch all" language is included. Updating human resources training sessions to include a discussion of sexual orientation discrimination is also imperative.

Since the law includes protections for transgendered individuals, you must make sure that such employees have appropriate bathroom access. The law allows employers to enforce valid dress codes and policies if they provide reasonable accommodation to an individual based on the individual's health and safety needs. Also of note, a church or religious institution is not prohibited from taking action with respect to employment, housing or the use of facilities based on a bona fide religious belief about sexual orientation.

Other Key Legislative Initiatives in Oregon


Disability Discrimination Law Amended
The Washington legislature recently revised its Law Against Discrimination to expand the definition of "disability." The new law now requires employers to treat nearly all diagnosable medical conditions as a disability whether or not they impact a major life activity. Disability has been redefined as a sensory, mental or physical impairment that 1) is medically cognizable or diagnosable; 2) exists as a record or history; or 3) is perceived to exist whether or not it exists in fact.

Unlike federal law, the revised statute also makes clear that the decision about whether an employee has a disability needs to be made without regard to any mitigating measures, such as medications, prosthetics, assistive devices, or even eyeglasses. In short, the new definition is more extensive than almost any similar law in the country, and will cover many more medical conditions than before.

This new law makes it more important that you grant reasonable accommodations for those employees with medical conditions. Moreover, it will likely lead to an increase of both accommodation requests and subsequent litigation when an accommodation is denied. Employers should be careful to keep the new law in mind when evaluating an employee's medical condition.

Other New Washington Laws of Note

For more information about any of the laws discussed in this Legal Alert, contact any attorney in the Portland office of Fisher Phillips.

This Legal Alert is aimed at providing educational information about particular bills and laws. It is not intended to be, and should not be construed as, legal advice for any specific fact situation.

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