Sexual Orientation Discrimination Laws in Washington

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, did not explicitly mention sexual orientation when enacted. However, the U.S. Supreme Court's landmark decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), held that discrimination based on sexual orientation constitutes unlawful sex discrimination under Title VII. This means all private employers with 15 or more employees are covered by the federal prohibition.

The EEOC enforces Title VII and interprets it to prohibit discrimination in all aspects of employment: hiring, firing, pay, job assignments, promotions, demotion, training, and any other term or condition of employment. Under Title VII, an employee can establish discrimination by showing that sexual orientation was a motivating factor in the adverse employment action. The employer cannot defeat liability by showing other reasons also motivated the decision.

Federal remedies include back pay (lost wages from the date of discrimination to judgment), front pay (prospective lost earnings), compensatory damages for emotional distress, punitive damages in cases of intentional discrimination, attorney fees, and reasonable costs. The EEOC investigates charges and may pursue litigation on behalf of employees. Employees must file a charge with the EEOC within 180 days of the discrimination (or 300 days in deferral states like Washington that have their own civil rights agency).

Washington's Law Against Discrimination (RCW 49.60.180) explicitly prohibits discrimination based on sexual orientation, making Washington's protection broader and more clearly codified than the federal baseline. The statute applies to any employer with 6 or more employees, covering more small businesses than Title VII's 15-employee threshold.

The Washington law defines "sexual orientation" in RCW 49.60.040 as "heterosexuality, homosexuality, bisexuality, and gender identity, including change of current gender identity." This definition is notably expansive and includes gender identity, offering protection beyond what some states provide. Washington courts and the Human Rights Commission have interpreted this to prohibit discrimination based on an employee's sexual orientation or gender expression, regardless of whether the employer knew the employee's actual orientation.

Washington law applies to all employment decisions: hiring, promotion, compensation, assignment, advancement, discipline, and termination. Unlike some states, Washington has no religious exemption for secular for-profit employers. However, RCW 49.60.040(3) provides a limited exemption for religious organizations when employing individuals for religious purposes.

State law also covers public accommodations, housing, and education, whereas Title VII covers only employment. The Washington Human Rights Commission (WHRC) investigates complaints of discrimination and may pursue enforcement action. Washington permits damage awards for emotional distress, mental anguish, and inconvenience, which may exceed federal Title VII damages in some cases. Attorney fees are available to prevailing parties, as is interest on damages. The 1-year filing deadline under Washington law provides more time than the 180-day federal deadline in non-deferral states.

Washington's Law Against Discrimination contains limited exceptions to sexual orientation protection. RCW 49.60.040(3) provides an exemption for religious organizations when the discrimination relates to employment in a religious position or role. However, courts narrowly construe this exception: it applies only when the employee's primary job duties involve promoting the organization's religious mission, such as clergy or religion teachers. The exception does not automatically cover all employees of a faith-based organization.

Employers cannot use customer or client preferences as a defense to sexual orientation discrimination. Even if a customer refuses to work with employees of a certain sexual orientation, the employer must accommodate the employee, not the customer. Similarly, coworker discomfort or biased attitudes do not constitute a legal exception.

At-will employment does not excuse discrimination. Washington recognizes the doctrine of at-will employment, but it is subject to an important limitation: employers cannot terminate employees for unlawful reasons, including sexual orientation discrimination. Even in at-will employment relationships, the employer cannot use sexual orientation as a reason for termination, whether stated or hidden.

Union representation does not provide an exception. Collective bargaining agreements cannot contain provisions that permit sexual orientation discrimination. Both the union and employer are liable for discrimination, even if discrimination is written into a contract.

Small employer exception: employers with fewer than 6 employees are not covered by state law, though they may still be covered by federal Title VII if they have 15 or more employees. However, this exception rarely provides meaningful protection for discriminating small employers, as the federal baseline now covers sexual orientation.

Step 1: Document the Discrimination. Keep detailed records of all discriminatory comments, actions, and decisions related to your sexual orientation. Document the date, time, location, individuals present, and what was said or done. Save emails, text messages, performance reviews, and any written communication that shows discrimination. Note how similarly situated employees of different sexual orientations were treated. Maintain a personal timeline of events, including when you disclosed your sexual orientation (if applicable) and when adverse actions followed. Request and retain copies of your personnel file, hiring records, and performance evaluations.

Step 2: Internal Complaint Process. Most Washington employers have internal complaint procedures. Report the discrimination to your direct supervisor, human resources department, or the employee relations office. Put your complaint in writing, either by email or letter, describing the discriminatory conduct, dates, and individuals involved. Keep a copy for your records. Request a written acknowledgment of receipt. Follow the employer's complaint procedures precisely, as described in the employee handbook. Document the employer's response and any investigation conducted. Even if you believe the internal process is futile, completing it may be required by your employer's policy and demonstrates good faith. If the employer retaliates for making an internal complaint, that retaliation is independently unlawful under RCW 49.60.210.

Step 3: File a Charge with the Washington Human Rights Commission. You have 1 year from the discriminatory act to file. Visit the WHRC website at www.hum.wa.gov or call (360) 753-6770. You may file online, by mail, or in person at the WHRC offices in Olympia or Seattle. Provide your name, contact information, the employer's name and address, the date(s) of discrimination, a detailed description of the conduct, the remedy sought (back pay, reinstatement, compensatory damages), and any witnesses. Include copies of supporting documents: emails, performance reviews, pay stubs, termination letters, or internal complaint records. You do not need an attorney to file, and filing is free. The WHRC will assign an investigator and notify the employer of your charge.

Step 4: Investigation Process. The WHRC investigator will contact both you and the employer, typically within 30 days. You will be asked to provide a detailed statement and evidence. The investigator will review the employer's records, interview witnesses, and examine the employer's policies and practices. The investigation typically takes 60–180 days, though complex cases may take longer. The employer must respond to the charge in writing, presenting its version of events and any evidence supporting its position. You may receive a request for additional information; respond promptly. The investigator will issue a "determination" concluding whether there is probable cause to believe discrimination occurred. If probable cause is found, the parties are invited to participate in conciliation (negotiated settlement). If conciliation fails, the case may proceed to a hearing before an administrative law judge.

Step 5: Consult an Attorney. If the employer retaliates after your complaint, if the investigation is taking an unusually long time, or if you receive an unfavorable determination, consult an employment attorney specializing in discrimination law. Many offer free initial consultations. An attorney can review your case, advise you on remedies available, represent you in settlement negotiations, and litigate before the Human Rights Commission or in court if necessary. Washington law permits recovery of attorney fees if you prevail, making it easier to find representation.