Washington Law Against Sexual Orientation Discrimination Not Retroactive

On September 13, the Washington Supreme Court held that a 2006 amendment to the Washington Law Against Discrimination, which makes it illegal for employers to discriminate on the basis of sexual orientation, does not apply retroactively. But the Court also held that evidence of pre-amendment harassment is admissible to show why post-amendment conduct is discriminatory.

Loeffelholz, a lesbian, sued the University of Washington in 2009, alleging that Lukehart, her supervisor, harassed her from 2003 to 2006 because of her sexual orientation.  She claimed that Lukehart’s conduct had created a hostile work environment.  She alleged only one incident, however, that occurred after the effective date of the 2006 amendment, and that incident was not explicitly related to her sexual orientation.  The trial court dismissed her claim, stating that Lukehart’s post-amendment conduct was insufficient to support a hostile work environment claim.  The court of appeals reversed, and the Supreme Court affirmed in part.

The Supreme Court first determined that the 2006 amendment applies only prospectively.  Thus, Loeffelholz was not entitled to recover for Lukehart’s actions before the amendment’s effective date.  The Supreme Court held, however, that evidence of Lukehart’s pre-amendment conduct was admissible as context to prove that his post-amendment behavior was discriminatory.  The only explicit comments Lukehart made regarding Loeffelholz’s sexual orientation, asking if she was gay and telling her not to “flaunt it,” occurred when she started working in 2003.  The Court further held that if Loeffelholz prevailed in her post-amendment hostile work environment claim, she would be entitled to damages from the effective date of the amendment, not just from the date of Lukehart’s post-amendment conduct.

Thus, while Loeffelholz v. University of Washington precludes recovery for sexual orientation discrimination occurring before the amendment, it does allow employees to bolster sexual orientation discrimination claims with evidence of pre-amendment conduct.

Utah: 2011 Legislative Session Winners and Losers

The 59th legislative session of the Utah State Legislature ended last week. Below is a list of the winners and losers from legislative session preview post on February 18, 2011(and a couple of notable additions).

WINNERS 

Immigration – Three highly controversial immigration bills affecting employment passed Utah’s House and Senate and were signed by Governor Gary Herbert on March 15, 2011. 

  • H.B. 497 grants immigration authority to state and local police to enforce general federal immigration laws when a person has been lawfully stopped, detained, or arrested for class a misdemeanors and felonies. 
  • H.B. 116 establishes a guest worker program for undocumented workers that would require background checks, proof of insurance and a Utah driving privilege card.
  • H.B. 466 creates a state program coordinated with the federal guest worker program to begin a partnership between Utah and Mexico to allow Mexican temporary workers to work in Utah.

For more information and various perspectives on these bills see our prior post on the immigration issue and other local news sources.

Community Service for Medicaid CoverageUtah lawmakers approved H.B. 211 creating a pilot program requiring a small number of Medicaid recipients to do community service in exchange for medical coverage.

More Tax Breaks for New Full-Time Positions – The legislature also passed H.B. 17 which modifies provisions related to tax credits which may be claimed for new full-time employee positions to allow certain credits to be taken in consecutive years.

Construction Employees v. Owners – Both the House and Senate approved S.B. 35 targeting construction firms that classify employees as owners in order to avoid paying workers' compensation insurance premiums, contributing to unemployment insurance, or withholding taxes. The bill would require construction owners to file an annual ownership status report and includes penalties for violations for misclassifying employees and depriving employees of workers' compensation coverage, among other things. If signed by Governor Herbert, the bill will take effect July 1.

Worker Misclassification Task Force– S.B. 11 has been approved by the legislature and signed by Governor Herbert. This bill sets up a new task force for various state agencies to discuss and coordinate their efforts to enforce rules against the classification of workers as owners or as independent contractors.

LOSERS

Immigration H.B. 253 would have required employer registration with E-Verify, but was defeated in the Senate.

Employee NoncompetitionH.B. 417, defeated in the House, would have enacted the Noncompetition Contract Act, which would have prohibited the enforcement of a noncompetition agreement against an employee who is discharged because of a reduction in force.

Gender IdentityS.B. 148 adding “gender identity” and “sexual orientation” to the list of protected classes under Utah discrimination in employment and housing statutes was defeated in the Senate.

Employment Practices & Protection from ViolenceS.B. 40 giving victims of violence the right to sue an employer that denies extra time off work was defeated in the Senate. 

New Salt Lake City Ordinances Prohibit Housing and Employment Discrimination Based on Sexual Orientation

Yesterday the Salt Lake City Council unanimously passed ordinances prohibiting discrimination on the basis of sexual orientation and gender identity.  Click here to download a copy of the City Council's Staff Report on the ordinances, along with full text of the new laws.  Highlights of the employment discrimination ordinance include:

  • Forbids employment discrimination based on a person's sexual orientation or gender identity in Salt Lake City. 
    • "Sexual orientation" is defined as "a person’s actual or perceived
      orientation as heterosexual, homosexual, or bisexual."
    • "Gender identity" is defined as "a person’s actual or perceived gender identity, appearance, mannerisms, or other characteristics of an individual with or without regard to the person’s sex at birth."
  • Creates a complaint and investigation process. The complaint could be resolved through mediation or a fine of up to $1,000.
  • Does not create a "private right of action" to sue over alleged discrimination.
  • Exempts religious organizations, the State of Utah, and businesses with fewer than 15 employees.
  • "Does not create any special rights or privileges," because "every person has a sexual orientation and a gender identity."
  • Requires annual reports by the city's Human Rights Commission on the effectiveness of the ordinances.
  • Takes effect on April 2, 2010.

In case you were wondering, the ordinances passed with the full support of the LDS Church.  "The church supports these ordinances," LDS spokesman Michael Otterson told the City Council, "because they are fair and reasonable and do not do violence to the institution of marriage."  For more coverage of the SLC ordinances, read this article from the Salt Lake Tribune, or this article from the Deseret News.

SLC employers should review the new laws and review existing policies and procedures to ensure compliance.  Many states, counties and cities across the country have adopted similar ordinances.  To check the state of the law in your location, check out this handy list of state and local sexual orientation and gender identity laws from the Human Rights Campaign

Employment Non-Discrimination Act: Is This the Year?

Just in time for Pride Month, Representative Barney Frank (D-MA) introduced the Employment Non-Discrimination Act of 2009 (ENDA) earlier this week. If passed, ENDA would prohibit employment discrimination on the basis of sexual orientation or gender identity.  It would also prohibit employers retaliation against employees who oppose such discrimination who participate in any investigation or  proceeding under ENDA. To read more about ENDA, check out this article from the Human Rights Campaign.

ENDA would be the first federal law prohibiting sexual orientation and gender identity discrimination.  Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of, among other things, sex; it does not explicitly prohibit sexual orientation or gender identity discrimination).  Several states already have similar protections in place, but ENDA would apply nationwide.   ENDA would exempt from its coverage small businesses (those with less than 15 employees), religious organizations, and the armed forces. 

This isn't ENDA's first trip through Congress; versions of the bill have been introduced in almost every Congress since 1994.  However, with a strong Democratic majority in both houses of Congress, a Democratic President who is feeling the heat from the GLBTQ community, and the gay rights movement riding a wave of successes in state legislatures, 2009 may well be the year ENDA becomes law. 

Employers whose policies and handbooks don't already address discrimination on the basis of sexual orientation or gender identity should consider a revision.  For an example of how one company has addressed such discrimination, click here to read IBM's anti-discrimination policy.  Click here for a state-by-state analysis of existing sexual orientation discrimination laws;