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e. Sexual Orientation Discrimination

A prohibition on sexual orientation discrimination was added to the WLAD in

2006. The statute defines “sexual orientation” broadly to include “heterosexuality,
homosexuality, bisexuality, and gender expression or identity.” The phrase “gender
expression or identity” means “having or being perceived as having a gender
identity, self-image, appearance, behavior, or expression, whether or not that
gender identity, self-image, appearance, behavior, or expression is different from
that traditionally associated with the sex assigned to that person at birth.” RCW
49.60.040(26).

f. Harassment

As early as 1980, the EEOC issued guidelines specifying sexual harassment as
a form of sexual discrimination prohibited by Title VII. In 1985, the Washington
State Supreme Court recognized for the first time that failure to correct a hostile
work environment caused by sexual harassment constituted discrimination in
violation of the WLAD. The following year the U.S. Supreme Court addressed a
claim of sexual harassment brought pursuant to Title VII for the first time. The
Court unanimously held that a claim of sexual harassment is actionable under Title
VII where a hostile environment is created by such harassment, even though the
harassment has no tangible economic impact on the plaintiff’s employment.

The concept of unlawful harassment has since expanded far beyond gender-
based claims. The Washington Supreme Court has confirmed that the WLAD
provides employees with a cause of action for disability-based hostile work
environment harassment. Federal courts have upheld hostile work environment
harassment claims against employers based on same sex sexual harassment and
harassment based on religion, race and national origin, and claims arising out of
harassment based on sexual orientation. Even so, harassment offenses are most
commonly associated with conduct based on sex.

A prudent employer should have in place:

• A clear anti-harassment policy informing all employees that workplace
harassment based on sex, race, religion, age or any other protected
classification will not be tolerated and will result in disciplinary action.
The policy should provide a clear complaint procedure, including an
option enabling the complaining employee to bypass the alleged
harasser as well. It should also assure that employees who do make

claims of harassment will be protected from retaliation;

WASHINGTON NONPROFIT HANDBOOK -221- 2018