Labor and Employment Law Alert: Oregon Adopts Sexual Orientation Nondiscrimination and Domestic Partnership Legislation


5/11/2007

Nondiscrimination

On Wednesday, May 9, Oregon Governor Ted Kulongoski signed "The Oregon Equality Act" into law. Unless referred to the voters, the new law takes effect January 1, 2008. It prohibits discrimination against persons in employment, housing and public accommodations based on sexual orientation, broadly defined to include "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."

Under local ordinances, sexual orientation and gender identity already have protected class status in Multnomah and Benton Counties and in several Oregon cities. The passage of the law expands statewide protections beyond those provided since 1998 by the Oregon Court of Appeals decision in Tanner v. OHSU. The law amends Oregon’s civil rights statutes, explicitly making workplace discrimination based on sexual orientation and gender identity an unlawful employment practice. Oregon will become the 18th state to ban sexual orientation discrimination.

Domestic Partnership

The Governor also signed "The Oregon Family Fairness Act," which establishes "domestic partnerships" that give same-sex couples most of the benefits of marriage under Oregon law, including parental rights and responsibilities for a same-sex partner with respect to a child of either partner. Because of the passage of Ballot Measure 36 in 2004, Oregon’s Constitution retains the "one man and one woman" definition of marriage. This new law provides for a contractual relationship; no "solemnization ceremony" is required in order for a same-sex couple to enter into a domestic partnership.

Unless referred to the voters, this law takes effect on January 1, 2008, and Oregon will join a growing number of states, including California, Washington, Vermont, Connecticut, New Jersey, and Maine, in offering domestic partnership or civil union recognition for gay couples. New Hampshire’s Governor has indicated he will sign a civil unions law passed by the state legislature last month. Currently, Massachusetts is the only state that allows gay couples to marry.

If opponents collect sufficient signatures, one or both of these new laws will require approval by voters in the November 2008 election to become effective.

What Should Employers Do?

In light of the new legislation, employers should audit job application forms, EEO policies, workplace harassment policies, and any other documents that reference nondiscrimination. It would be prudent either to include sexual orientation and gender identity on any list of protected classifications, or a broad "catchall" — for example, ". . . or any other classification protected under applicable federal, state, or local nondiscrimination law." Employers also should examine the language in their benefits policies and consider whether group health coverage or other benefits (bereavement leave, for example) ought to be extended to same-sex domestic partners.

Washington State

In January 2006, Washington’s legislature amended the Washington Law Against Discrimination to include sexual orientation and gender identity or expression (see http://www.stoel.com/showalert.aspx?Show=2363). Just last month, Washington passed a domestic partner bill that includes many of the rights granted with marriage.

For more information about the issues in this bulletin, please contact the Stoel Rives attorney with whom you regularly consult. For a list of attorneys in the Labor and Employment Group, click here. For a list of attorneys in the Employee Benefits Group, click here.

This is a publication of the Stoel Rives Labor & Employment group for the benefit and information of clients and friends. This bulletin is not legal advice or a legal opinion on specific facts or circumstances. The contents are intended for informational purposes only. Copyright 2007, Stoel Rives LLP.


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