Employment Law Alert: Oregon's Sexual Orientation and Domestic Partnership Laws Take Effect January 1: Be Prepared

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Two important new Oregon civil rights laws will go into effect on January 1, 2008: the Oregon Equality Act, which prohibits discrimination based on sexual orientation (including gender identity), and the Oregon Family Fairness Act, which establishes domestic partnerships for same-sex couples. Oregon Governor Ted Kulongoski signed both laws on May 9, 2007, but opponents of the two laws attempted to refer them to the voters before they could take effect. The Secretary of State’s office announced last week that opponents were unable to gather enough signatures to place either law on the November 2008 ballot. Therefore both laws will take effect on January 1, 2008.

Nondiscrimination

The Oregon Equality Act prohibits discrimination against persons in employment, housing and public accommodations based on sexual orientation, which is 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, Benton and Wasco 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 becomes the 18th state to ban sexual orientation discrimination.

Domestic Partnership

The Oregon Family Fairness Act 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 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. Any same-sex couple can enter into a domestic partnership; no "solemnization ceremony" is required.

Oregon joins a growing number of states, including California, Washington, Vermont, Connecticut, New Jersey and Maine, in offering domestic partnership or civil union recognition for same-sex couples. On June 1, 2007, New Hampshire’s governor signed a civil unions law passed by the state legislature. Currently, Massachusetts is the only state that allows same-sex couples to marry.

What Should Employers Do?

In light of the new laws, employers should audit job application forms, EEO policies, workplace harassment policies and any other documents that reference nondiscrimination. It would be prudent to include both sexual orientation and gender identity on any list of protected classifications, or a broad "catchall" phrase — for example, "any other classification protected under applicable federal, state or local nondiscrimination law." Whether the new laws require private employers to offer group health coverage or other benefits to same-sex domestic partners on the same terms that they offer such benefits to married heterosexual couples is a complex question that is not yet resolved. However, employers may want to consider expanding benefits to same-sex domestic partners to avoid a legal challenge to their benefits policies.

For more information about the issues in this bulletin, contact the Stoel Rives attorney with whom you regularly consult.

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