Oregon Employers: Shine a Light on Protections for Gender Identity/Gender Expression

You may already know that Oregon law prohibits discrimination or harassment based on an employee’s sexual orientation. This law applies to Oregon’s smallest businesses, including those with just one or more employee. It’s high time, however, to raise awareness about some related legal protections—specifically, gender identity and gender expression. Not only are those classes protected in Oregon, but we think this needs to be on the forefront of employers minds. Read on to learn why, and for action items and more.

Who exactly is protected? First of all, let’s make sure we’re speaking the same language. “Sexual orientation” typically refers to which gender a person is romantically/emotionally/sexually interested in. Oregon law defines that term broadly, to include “actual or perceived heterosexuality, homosexuality, bisexuality, or gender identity” and more. But other key terms surrounding these legal protections are still sometimes misunderstood.

Similar to Nevada, Hawaii, New Jersey and other states, Oregon law says gender expression and gender identity are legally-protected classes, too (or at least included in the class of “sexual orientation” protection). And Oregon provides expansive definitions of those classes:

  • “Gender expression” means the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, or speech, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth.
  • “Gender identity” means an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.

See OAR 839-005-0003. That means Oregon’s legal protections extend to include people who: are born as a man, but want to present a more feminine appearance (or vice-versa); are undergoing sex reassignment surgery; identify themselves as “transgender;” and more.

What’s prohibited… or required? Discrimination (termination, demotion, refusal to hire, etc.) and harassment based on these broadly-defined categories is prohibited by law. Our laws prohibit retaliation against those who report concerns about discrimination/harassment, too.

There are duties to accommodate disabilities, religious practices… what about a duty to “accommodate” here? Failure to make some accommodations based on gender expression/identity could be illegal. For example, enforcing an “otherwise valid dress code or policy” is allowed, but only if the employer provides “on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.” Further, this dress code exception does “not excuse a failure to provide reasonable and appropriate accommodations permitting all persons access to restrooms consistent with their expressed gender.” (OAR 839-005-0031.) We think this and other laws call for dress codes to be as gender-neutral as possible. For example, calling for “professional attire” would likely pass legal muster, if enforced consistently as to all. Insisting that “men wear suits, women wear skirts/makeup” would not.

Why it’s a top priority concern for Oregon employers: The enforcement activity in this area speaks for itself. For starters, the Equal Employment Opportunity Commission (“EEOC”) has identified the protection of “lesbian, gay, bisexual and transgender individuals,” to the extent it can under existing federal law, as a “priority” area for enforcement. (Click here for the EEOC’s most recent Strategic Plan.) And it’s already acting on that priority.

As for just a few examples: the EEOC went after Rapid City Market for terminating a well-performing employee (who had recently been promoted), after she indicated her intent to present as a woman. The EEOC’s conciliation agreement included a $50,000 settlement check to the employee, required trainings and more. And in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the EEOC announced its opinion that “gender identity, change of sex, and/or transgender status” is protected under federal Title VII (as opposed to just Oregon law). The Bureau offered a job to an applicant, who initially presented as a man. While her background check was being conducted, Macy notified the Agency that she was in the process of transitioning to being female. The job offer then disappeared, another person was hired, and the EEOC case followed.

Even here in Central Oregon, we’ve seen disputes where the evidence involves comments that can be seen as blatantly discriminatory: for example, “we can’t have that around the customers” (where “that” meant a person’s expression of their gender identity). Ignorance of these protections/issues make all the more reason to spread the word, and make sure your managers know about Oregon’s broad protections.

Action items for Oregon employers include the following:

  1. Check your policies. Do they expressly prohibit discrimination/harassment based on sexual orientation? What about gender identity/expression, or transgender status?
  2. Train your managers, and make sure they know this protection exists. Live, interactive trainings (especially with your local, friendly employment attorneys—sorry, couldn’t resist) are best. But why not at least mention it at your next management meeting? Or circulate this blog article to your management team, as a reminder?
  3. Don’t turn a blind eye, or run from an issue. If someone complains they’ve been mistreated based on one of these newer protected classes, get some good advice and investigate as quickly as possible. Employers who fail to have an appropriate conversation and work with employees on restroom access issues, where an employee’s gender expression/identity is involved, could easily become the next target for the EEOC, Oregon’s Bureau of Labor and Industries or a plaintiff’s lawyer.