Hot Buttons in Workplace Diversity:
Sexual Preference and Identity, Religious Rights, Body Art, National Origin

1. PROTECTIONS AGAINST DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION

   1. Local ordinances - Oregon
      
      Several local jurisdictions have adopted local ordinances that bar discrimination on the basis of sexual orientation, including Portland, Beaverton, Lake Oswego, Lincoln City, Salem, Eugene, Ashland, and Bend. These ordinances govern employment relationships within each city's jurisdiction.
      
      There is, however, a state law that may preempt such local ordinances, although it has never been tested: ORS 659.870. This law prohibits localities from establishing “special rights” based on sexual orientation.

   2. State law - Oregon
      
      Oregon's state employment discrimination law does not directly address sexual orientation. The statute, however, bars discrimination on the basis of sex or the "sex . . . of any person with whom the individual associates. . . ." ORS 659A.030(1)(a). One Oregon court of appeals case has interpreted this provision to bar discrimination on the basis of sexual orientation. Tanner v. Oregon Health Sciences Univ., 157 Or App 502, 971 P2d 435 (1998). The court ultimately found that, on the facts of that case, the employer had not violated the statute when it denied spousal medical benefits to the same sex domestic partners of its homosexual employees, although the denial did constitute a violation of Oregon Constitution Article 1, Section 20. The Commission of the Bureau of Labor and Industries has expanded on the Tanner holding. See, e.g., OAR 839-009-0210 (granting family leave coverage to domestic partners).
      
      Bills have been introduced into recent legislative sessions to add protections from discrimination on the basis of one's sexual orientation, but have yet to pass.

   3. State law - Washington
      
      In its 2006 session, the Washington legislature amended its Law Against Discrimination to bar discrimination on the basis of sexual orientation, which by its definition includes homosexuality, heterosexuality, bisexuality and transsexualism or gender identity issues.

   4. Federal law
      
      Recent federal cases hold that Title VII does not cover discrimination based on sexual orientation.
      
      In Medina v. Income Support Div., New Mexico, 413 F3d 1131 (10th Cir. 2005), the court affirmed the dismissal of a sexual orientation discrimination claim by a heterosexual employee, holding that Title VII afforded no such cause of action. Similarly, Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), held that a lesbian employee could not bring a sexual orientation discrimination claim because "Title VII does not prohibit harassment or discrimination because of sexual orientation."
      
      Gender stereotyping claims in sexual orientation suits have likewise been rejected. See, e.g., Medina (rejecting plaintiff's argument that, as a heterosexual woman, she suffered sexual stereotyping discrimination by lesbians in her office); Dawson (finding that "a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII").
      
      But compare Nichols v. Azteca Rest. Enterprises, Inc., 256 F3d 864 (9th Cir. 2001) (holding that gender stereotyping provided a cause of action under Title VII where a gay male employee was harassed and called a woman by his male colleagues).

2. TRANSSEXUALISM AND GENDER IDENTITY

   1. Local ordinances—Oregon
      
      Most local ordinances which bar discrimination on the basis of sexual orientation also bar discrimination on the basis of gender identity, and those that do not specifically do so may well be interpreted to do so.

   2. State law—Oregon
      
      ORS 659A.118(2), under the heading of Reasonable Accommodations, provides, "Notwithstanding any other provision of ORS 659A.100 to 659A.145, an employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to a person with a disability arising out of transsexualism."
      
      OAR 839-006-0206(2) provides, "An employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to a person with a disability arising out of transsexualism. However, an employer may not refuse to hire or promote or bar or discharge from employment or discriminate in compensation, terms, conditions or privileges of employment because a person is transsexual when the person is otherwise qualified."

   3. State law—Washington
      
      The 2006 amendments to the Washington Law Against Discrimination bar discrimination against transsexuals.

   4. Federal law
      
      1. Federal disabilities discrimination laws
      
      Both the federal Americans with Disabilities Act (ADA) and the Rehabilitation Act (applying to the federal sector and certain federal contractors) expressly exclude transsexualism from protection.
      
      42 USC § 12211(b) provides: "Under this chapter, the term 'disability' shall not include—(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders. . . ."
      
      29 USC § 705(20)(F) provides: "For the purposes of . . . this title, the term 'individual with a disability' does not include an individual on the basis of—(i) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders. . . ."
      
      2. Title VII
      
      Federal courts have held that transsexuals are not covered by Title VII prohibitions of sex discrimination in the workplace. See Holloway v. Arthur Anderson, 566 F2d 659 (9th Cir. 1977) (holding that transsexuals are not within the scope of Title VII because, in promulgating Title VII, “Congress had only the traditional notions of ‘sex’ in mind” and did not contemplate coverage for transsexuals).
      
      However, at least one recent case has allowed a claim by a transsexual under a gender stereotyping theory. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (holding that a pre-operative male-to-female transsexual police officer could state a cause of action under Title VII alleging "sex discrimination based on his failure to conform to sex stereotypes").

3. RELIGIOUS DISCRIMINATION

   1. Religious accommodation does not include right to discriminate on legally prohibited grounds
      
      An employer has certain obligations to provide reasonable accommodation of religious beliefs under state and federal employment discrimination laws. Examples include allowing an employee whose sincere beliefs bar him or her from working on the Sabbath to have a day off, or to permit Muslim employees time to pray during the work day, subject to an undue hardship defense.
      
      Courts have held, however, that employers do not have to accommodate religious beliefs where employees manifest such beliefs by harassing others. See, e.g., Peterson v. Hewlett-Packard Co., 358 F3d 599 (9th Cir. 2001) (holding in favor of employer that fired employee who posted religiously motivated messages intended to be "hurtful" to his gay co-workers where the employee insisted on posting the messages or forcing the employer to take down diversity-promoting posters, thereby imposing undue hardship on the employer); Bodett v. CoxCom, Inc., 366 F3d 736, 93 FEP 1108 (9th Cir. 2004) (holding in favor of employer that fired employee who, because of her religious beliefs, “coerc[ed] and harass[ed] an openly gay subordinate” in violation of the employer’s anti-harassment policy).

   2. Religious accommodation does not include an employee's unfettered right to proselytize
      
      Courts have also placed limits on an employee's right to proselytize at work.
      
      In Chalmers v. Tulon Co. of Richmond, 101 F3d 1012 (4th Cir. 1996), an employee, Chalmers, sent her coworkers letters criticizing their actions in their personal lives and urging them to ask God for forgiveness and “be obedient to God.” The court held that Chalmers’ employer was not required under Title VII to accommodate her efforts to convert her coworkers to her religious beliefs, stating that such conduct is “not susceptible to accommodation.”
      
      Another case involved two state employees, a nurse consultant and a sign language interpreter, who were both born-again Christians and felt compelled to proselytize to their clients during work. The court held that no accommodation had to be made because allowing proselytizing while serving clients would “jeopardize the state’s ability to provide services in a religion-neutral manner.” Knight v. Connecticut Dept. of Public Health, 275 F3d 156 (2d Cir. 2001).
      
      The Seventh Circuit has applied similar limits in a case where a Christian employee claimed that her religious beliefs required that she be permitted to say "Have a Blessed Day" over the telephone and in correspondence at work. The employee attempted to obtain an injunction from the court to allow her to use that phrase in work-related communications, but both the district and appellate courts rejected her claim. Anderson v. U.S.F. Logistics, 274 F3d 470 (7th Cir. 2001).

   3. An employer's proselytizing may constitute religious harassment
      
      Just as an employee need not tolerate a sexually or racially hostile work environment, so too an employee is protected from a religiously hostile work environment:
      
      According to the Seventh Circuit, a Christian police chief's exhortations to an employee to follow God and be saved, as well as his abusive comments about her personal life, could support the employee's claim for constructive discharge. The court remanded for further factual findings, but stated that in particular the employer and employee’s close proximity to each other at work and the fact that the employer made such comments on a daily basis, even though the employee did not object, appeared to support the employee’s claim. Venters v. City of Delphi, 123 F3d 956 (7th Cir. 1997).
      
      Young, an atheist, was hired as a teller and required to attend weekly staff meetings that began with a non-denominational invocation. She told her supervisor that she did not want to attend because she considered it a prayer meeting, but was told that attendance was mandatory. The court concluded that the employee showed the conditions were so intolerable that her resignation amounted to a constructive discharge. Young v. Southwestern Savings & Loan Ass'n, 509 F2d 140 (5th Cir. 1975).
      
      A company's CEO distributed a narrative explaining the role of religion and God in starting and guiding the business, shared her beliefs with managers and encouraged them to do the same, and managers were asked about their religious beliefs and evaluated on their ability to support and transmit the Christian mission. The company also had weekly religious “devotions” and prayer before meetings. On these and other facts, a jury verdict for the employees was upheld. EEOC v. Preferred Management Corp., 216 F Supp 2d 763 (S.D. Ind. 2002).

   4. Religious accommodation in the area of dressing and grooming requirements
      
      1. Accessories
      
      In a case where an employee made a religious vow to wear an anti-abortion button with a very graphic picture of a fetus on it, the court held that the employer did not have to accommodate her beliefs. The employee had rejected her employer’s offers to accommodate the button, which had included wearing the button only in her cubicle, covering the button while at work, and wearing different button without the graphic picture but with the same message. The court found that the employer’s offers of accommodation were sufficient to satisfy Title VII. Wilson v. U.S. West Communications, 58 F3d 1337 (8th Cir. 1995).
      
      Another case involved a police officer who wore a pin symbolizing evangelical Christianity on the outside of his uniform. There the court also upheld the employer’s right to refuse accommodation where other offers of reasonable accommodation were made, including wearing a symbolic ring or bracelet instead of a pin, wearing the pin under his uniform, and transferring to a non-uniformed position where wearing the pin would be acceptable. Daniels v. City of Arlington, 246 F3d 500 (5th Cir. 2001).
      
      2. Beards
      
      In a case involving a Jewish employee who maintained a beard in accordance with his religious beliefs, a federal court ruled in favor of the employee, finding that the employer failed to show that accommodating the beard would present undue hardship under Title VII. Carter v. Bruce Oakley, Inc., 849 F Supp 673 (E.D. Ark. 1993).
      
      Likewise, a case involving a police department's no-beard policy also found in favor of Muslim employees with beards using a constitutional First Amendment analysis. Fraternal Order of Police Newark v. City of Newark, 170 F3d 359 (3d Cir. 1999).
      
      But compare EEOC v. Sambo’s of Georgia, Inc., 530 F Supp 86 (N.D. Ga. 1981) (upholding a restaurant’s refusal to accommodate a Sikh job applicant’s facial hair because allowing accommodation of beards would cause undue hardship, including harming the restaurant’s public image and potentially resulting in a violation of sanitation rules).
      
      3. Body art and piercings
      
      A Costco cashier was terminated for wearing facial piercing jewelry, supposedly in accordance with her beliefs in the Church of Body Modification. The court did not analyze the sincerity of her religious belief, but relied on prior case law recognizing public image as a rationale for denying a religious accommodation and concluded that accommodation would impose undue hardship on Costco. The court embraced the concept that employers can have personal appearance requirements despite religious objections. Cloutier v. Costco Wholesale Corp., 390 F3d 126 (1st Cir. 2004).
      
      A federal trial court in the state of Washington declined to apply the Costco decision in a case involving a restaurant that fired a server for his religiously based tattoos. The employee claimed adherence to the ancient Egyptian religion of Kemetecism, and the tattoos, which were received during a religious ceremony, contained religious statements. The court held that it was bound by the law of the Ninth Circuit, which requires that "undue hardship" must be shown by concrete facts, and there was no evidence that the employee's tattoos actually affected customer perception. Because the employer failed to provide such evidence, summary judgment was denied. The court also noted that in Costco the employee's "facial piercings were imminently visible" while the server's tattoos were discrete and not readily noticeable. EEOC v. Red Robin Gourmet Burgers, Inc., 2005 WL 2090677 (W.D. Wash. Aug. 29, 2005).
      
      4. Dress codes
      
      Public contact position: No accommodation was required to allow Muslim female employee to wear headscarf with uniform, where the employee was offered as an alternative a non-customer contact position not requiring a uniform. Ali v. Alamo Rent-A-Car, 8 Fed Appx 156, 2001 U.S. App. LEXIS 3389 (4th Cir. Mar. 6, 2001).
      
      Safety-based dress code: Female correction officers who claimed it was against their religion to wear pants did not have to be accommodated because of the close connection between the dress code and the safety of officers and inmates. Seabrook v. City of New York, 80 Fair Empl Prac Cas (BNA) 1452, 1999 U.S. Dist. LEXIS 13729 (S.D.N.Y. Sept. 7, 1999), aff'd 210 F.3d 355 (2d Cir. 2000).

4. NATIONAL ORIGIN OR ETHNICITY-BASED DISCRIMINATION
   
   A jury verdict on a hostile work environment claim in favor of Mamdouh El-Hakem was upheld based on a nickname given to him by the CEO of his employer company. The CEO repeatedly called El-Hakem "Manny," despite his repeated objections, because the CEO felt that a “Western” name would be better for business. The court recognized that "Manny" was not a racial epithet, but held the employer liable for race discrimination: "A group's ethnic characteristics encompass more than its members' skin color and physical traits. Names are often a proxy for race and ethnicity." El-Hakem v. BJY Inc., 415 F3d 1068 (9th Cir. 2005).
   
   A Hispanic employee of Guatemalan descent alleged discrimination based on his ethnicity when denied overtime and disciplined for dropping a pallet of zucchini. Summary judgment was reversed and the case sent to trial based on "direct evidence" of discriminatory animus that the plaintiff's supervisor mocked his accent and pretended not to understand him only two months prior to the two incidents. Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F3d 840, 94 FEP 65 (9th Cir. 2004).

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