This topic will briefly discuss employment, housing and public accommodation discrimination, other discrimination on the basis of sexual orientation, or the impact of sexual orientation for criminal charges based on sexual activity.
Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity.
It is unlawful in the state of Oregon for an employer to discriminate against you because of your sexual orientation. Sexual orientation is defined as: “an individual’s 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.” Although gender identity is not defined by statute, Oregon’s Bureau of Labor and Industries has interpreted “gender identity” to mean 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 — and “gender expression” to mean 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. “Sex” is defined by BOLI to mean the anatomical, physiological and genetic characteristics associated with being male or female.
The law applies to almost every Oregon employer, regardless of how many employees or how long the employee who is experiencing discrimination has worked for the employer.
The law provides a dress code or policy exception, so long as the dress code provides, on a case-by-case basis, reasonable accommodation based on the “health and safety needs of the individual.” The exception does not excuse a failure to provide all persons access to restrooms consistent with their expressed gender.
“Bona fide” churches or other religious institutions are exempt from the requirement of sexual orientation nondiscrimination. The exemption applies where an employment position is “directly related” to the operation of the religious institution or “closely connected with or related to” the primary purposes of the religious institution. It specifically includes a nonprofit religious school, camp, day care center, thrift store, bookstore, radio station or shelter.
Although this exemption has not been challenged, so there is no case law to shed light on its breadth, it is likely that this exemption will be construed very broadly to permit sexual orientation discrimination by religious organizations in most employment circumstances.
Protections Against Discrimination Based on Sexual Orientation in Housing, Public Accommodations, Jury Service, Education and Real Estate Transactions.
State law prohibits discrimination based on sexual orientation in housing or places of public accommodation, such as hotels, restaurants or other businesses. In all but a few circumstances, landlords, businesses and education institutions may not refuse to serve you or sell or rent to you because of your sexual orientation or gender identity. If you have a question about such discrimination, you should ask a lawyer about the current laws.
Can I be Charged with a Crime Relating to my Sexual Orientation?
No. Sexual orientation is not a criminal offense, and neither is sexual conduct of any sort that occurs in private and between consenting adults. If you have been charged with a criminal offense and the prosecution is attempting to use your sexual orientation against you, it is extremely important to obtain competent and understanding legal assistance.
If sexual orientation or gender identity is an issue or potential issue in any legal matter with which you are concerned, you should promptly seek out competent, experienced and sympathetic legal assistance. Very short time limitations may apply, so do not delay in seeking assistance if you believe you have been discrimination against you has occurred.
Legal editor: Beth A. Allen, November 2011