Washington State Human Rights Commission

YOUR GUIDE TO SEXUAL ORIENTATION, GENDER IDENTITY, DISCRIMINATION,
and WASHINGTON STATE LAWS

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.

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.

How does a company’s dress code apply to transgender employees?
If an employer has a gender–specific dress code, employers should permit employees to comply with these provisions in an appropriate manner that is consistent with their gender identity or expression.

Employers may ask transitioning employees—who are often required by their counselors to “present” as the gender to which they are transitioning before undertaking any surgical procedures—to present consistently as this gender throughout the transition.

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 where safe.

Will a transsexual employee require specialized medical treatment?
Transsexuality is a medical condition that is clinically termed “gender identity disorder.” Transition, or change of gender presentation and physical gender characteristics, is a medically appropriate and necessary treatment for this condition as defined by the Standards of Care for Gender Identity Disorders, published by the Harry Benjamin International Gender Dysphoria Association.

Those with this medical condition who desire to pursue a medical avenue are required to undergo a number of medical treatments to support their transition. These may include therapist visits, doctor’s office visits, electrolysis/laser hair removal, hormone therapy, and major surgeries. An employer should treat a transgender employee’s request for time off from work for medical treatment related to his or her transition no differently than a request for time off related to any other medical condition or disability.

Will I be required to change the name and/or sex of a transitioning transsexual employee in company records?
Employers should ask a transgender employee what name and sex-specific pronoun he or she prefers, and use them consistently. Legal company records should reflect the employee’s legal name. If that name is not consistent with the employee’s gender presentation an employer can still ensure that all (non legal) references to the employee’s name and gender (especially e-mail, photo ID, organization charts and directories, and workplace signs) are consistent with the employee’s gender identity and expression.

What are my responsibilities with respect to my other employees?
Many co-workers may have never met a transgender person. They may have misconceptions about the need to transition or appropriate behavior towards transgender co-workers. As is the case with sexual harassment, employers are responsible for non-discrimination, maintaining a non-hostile work environment, establishing clear policies on gender identity and expression, and educating all employees as to the policies.

Co-workers may need guidance on appropriate use of names and pronouns; restroom use policy; discretion as to an employee’s transgender status; and, of course, the unacceptability of harassment and discrimination against their transgender co-workers. Bringing in a consultant to provide training on gender identity sensitivity and awareness has been helpful to many companies, and the WSHRC is compiling a list of such resources for employers.

What should an employer do with respect to background checks or references for transgender employees?
Transgender job candidates who have already transitioned and changed their name may have worked, gone to school, or established credit in their former name. A background check or reference may disclose this name. Employers should keep in mind that the law forbids discrimination based on gender identity and expression, and that the use of a different name occurs for many reasons. If it is unavoidable that an employer asks for previous names, the employer should take care to treat the candidate exactly as any other candidate whose name has changed would be treated.

An employer may be asked to give a reference for a former employee who has transitioned or changed their name. The employee’s former name may not match the new name expected by the person checking the reference. In this case, use the person’s new name and preferred pronouns. If asked, the former name may be confirmed. Because gender identity and expression are unlawful considerations in employment the former employer may not disclose the employee’s transgender status when giving a reference.

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