You Don’t Bring Me Flowers: Anti-Discrimination and Consumer Protection Laws Upheld for Washington State’s LGBT Community

By Michael R. Scott

On February 18, 2015, in a historically significant ruling, a Benton County Superior Court judge found that Arlene’s Flowers, who refused to provide flowers to Curt Freed and Robert Ingersoll for their wedding, had violated state anti-discrimination and consumer protection laws (State of Washington v Arlene’s Flowers). I had the honor of working with several of my colleagues to represent the plaintiffs in this action, and we couldn’t be more pleased with the ruling and the precedent it sets on behalf of the LGBT community.

We were approached by Sarah Dunne, Legal Director for the ACLU Foundation of Washington, and asked to take on the case pro bono. Although representing a significant investment for the firm (hundreds of hours in donated attorney time), my partners immediately recognized the case’s significance as a civil rights issue, and wholeheartedly approved our involvement.

We prevailed in the ruling because of two key arguments:

1. Violation of the State Civil Rights Act: The Washington State Civil Rights Act, known as the Washington Law Against Discrimination, prohibits discrimination because of sexual orientation.  RCW 49.60.030.  The right to be free from discrimination includes the right to “full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement. . . .”  Id.  The statute defines “any place of public resort, accommodation, assemblage, or amusement” to include any place “for the sale of goods, merchandise [or] services. . . .”  Id.  This definition clearly includes businesses such as Arlene’s Flowers, and prohibits Arlene’s Flowers and other similar businesses from refusing to sell goods, merchandise, and services to any person because of their sexual orientation.
2. Religious Beliefs No Defense: Arlene’s Flowers refused to provide flowers to our clients for their wedding citing religious beliefs.  While they have the right of religious freedom, we live in a diverse country, and religious beliefs, no matter how sincerely held, may not be used to justify discrimination in the public spheres of commerce and governance.  Instances of institutions and individuals claiming a right to discriminate in the name of religion are not new.  Religious beliefs have been invoked to justify denying women the right to vote; to prohibit men and women of different races from getting married; and to support segregation in schools, businesses, and other public places.  Just as courts have held that those forms of discrimination are not permitted, even on the basis of sincerely held religious beliefs, so is discrimination based on sexual orientation unlawful.

In its ruling the court said, “Defendants’ refusal to ‘do the flowers’ for Ingersoll and Freed’s wedding based on her religious opposition to same sex marriage is, as a matter of law, a refusal based on Ingersoll and Freed’s sexual orientation in violation of the WLAD.”

Further, the court stated, “No Court has ever held that religiously motivated conduct, expressive or otherwise, trumps state discrimination law in public accommodations.  The Defendants have provided no legal authority why it should.”

As thrilled as we are by this ruling, we believe Arlene’s Flowers will appeal it, potentially all the way to the Washington Supreme Court. My colleagues and I, with full support of the firm, are committed to continuing the fight all the way on a pro bono basis. We are confident that the ruling will be upheld, and will keep GSBA members updated on new developments.


Mike Scott is a GSBA member and Chair of the Litigation Group at Seattle’s Hillis Clark Martin & Peterson P.S. His practice focuses on litigation involving a wide variety of commercial disputes in state and federal trial and appellate courts, and in arbitration and mediation forums.  

EEOC Commissioner Chai Feldblum

President Obama has appointed a record number of LGBT people to important positions within his administration.  These men and women have been at the forefront of fighting for equality for our communities, often in ways which can go unnoticed.

Chai Feldlum was nominated by President Obama to serve as one of the 5 commissioners of the Equal Employment Opportunity Commission (EEOC) and subsequently confirmed by the U.S. Senate in December 2010.  Commissioner Feldblum has done amazing work at the EEOC, including working on protections for transgender people.  The first openly LGBT Commissioner of the EEOC, she was the lead drafter the Employment Nondiscrimination Act (ENDA).  Before being nominated by President Obama, she was a Georgetown Law Professor, served as Legislative Counsel to the AIDS Project of the ACLU and played a leading role in the drafting of the Americans with Disabilities Act of 1990 and the ADA Amendments bill in 2008.

Commissioner Feldblum has been touring the country recently to reach out to the LGBT community and discuss some of the important recent developments at the EEOC. She stopped by the GSBA offices on Monday, September 10 to meet with a group of Seattle community leaders.

Did you know that the EEOC has ruled that bias based on gender identity or transgender status amounts to sex discrimination under Title VII of the Civil Rights Act?  The Macy v. Holder decision, officially approved by the Commission, applied “not only to complaints of discrimination filed against federal agencies, but also to charges of  discrimination against transgender individuals that are filed against private sector employers with more than 15 employees, or against state and local government employers.”

While the specific ruling of the Macy case specifically addresses gender identity and not sexual orientation, Commissioner Feldblum suggests that there is a clear argument for covering sexual orientation discrimination under Title VII as well, based on established rules against gender stereotyping.  The Commission’s reasoning means that:

persons discriminated against on the basis of sexual orientation may have valid sex discrimination claims. For this reason, in a memo dated July 30, 2012, the Office of Federal Operations (OFO) of the EEOC advised all federal EEO directors that lesbian, gay and bisexual employees and applicants who believe they have been discriminated against on the basis of sexual orientation should be counseled that they have a right to file a complaint under the 1614 process of Title VII as they may have experienced sex discrimination.  

If someone files a charge of discrimination with their local EEOC office, they are advised to list “sex” as the basis for the alleged discrimination.  It will then be up to the EEOC investigator to determine whether there is reasonable cause to believe that gender was inappropriately taken into account in an employment decision.

To Approve Referendum 71 - WE need YOU!

To Approve Referendum 71 - WE need YOU.

If YOU:

1. Vote!

2. Put your stamped ballot in the mailbox

3. Make sure your LGBTQ friends vote

4. Get five straight friends to vote to APPROVE Referendum 71

WE WIN!

Remember - ballots must be postmarked by Tuesday, November 3. And, if you are not already registered to vote, you and your friends can register in person at the King County Elections Office, 9010 E. Marginal Way S., Tukwila, Washington by October 26. You can also drop off your ballot at the same address.

What I've Learned On The Front Lines In Olympia

Referendum 71 — Vote To Approve

By Mona Smith, GSBA Board President

When the Referendum 71 «Decline to Sign» campaign started, I called GSBA member Anne Levinson, Chair of Washington Families Standing Together (WAFST) and Campaign Director Josh Friedes to see how GSBA could assist. I also extended my personal offer to help. Referendum 71 seeks to roll back the third installment of the 2009 domestic partnership legislation.

While not marriage, the legislation provides to LGBT families and senior registered domestic partners all of the rights and responsibilities of married spouses in Washington state. The 2009 legislation included pension and death benefits to partners of first responders and other civil servants as well as the elimination of home studies in second parent adoptions This is a major step in our fight for full civil rights including marriage.

Referendum 71 asks voters whether they want to retain the 2009 Domestic Partnership Bill passed by the legislature and signed by Governor Chris Gregoire. A “yes” vote retains the law; a vote “no” repeals the law.

I received a call from Anne in late July taking me up on my offer to help. She asked if I would assume a leadership role in recruiting observers for the signature verification process in Olympia on behalf of WAFST. In order for Referendum 71 to get on the November ballot, the petitioners must have 120,577 valid signatures from registered voters from the almost 138,000 signatures submitted. As we go to press, the Elections Division in the Secretary of State’s office is in the process of verifying the submitted signatures. This is only the fourth time in 19 years that the Secretary of State is conducting a full review of each and every signature. The target date for concluding signature verification is the end of August.

Each side is allowed to have observers present to monitor the verification procedure. From my viewpoint, being an observer has opened my eyes to what really goes on in the referendum and initiative process. Being part of this process has made me better understand and appreciate our democratic system.

Beyond the task at hand, what is really significant is the collaboration of GSBA members and partners, working together for equality for all. I am proud to be a GSBA member. At the time I am writing this column, we do not know whether Referendum 71 will be on the ballot. I urge

each of you to vote in the upcoming election and if it is on the ballot to get involved. Contact Washington Families Standing Together (206-324-2570 or www.approvereferendum71.org).

All through August, I have been in Olympia almost every day observing the signature verification. I have not been alone. GSBA members have answered the call and generously donated their time in the fight for equality. I want to give big shout outs to GSBA board members Jonathan “Mac” Macaranas, Jonathan Bowman, Kristine Messick and Leah Schulz who have gone over and above the call of duty in Olympia. More shout outs and thanks go to GSBA

members Jeff Maxwell, Alene “Andie” Anderson, Matt Bockus, Don Moreland, Steven McGregor, Jennifer FitzSullivan, Shad Reinstein, and Elizabeth Berns who have given and continue to give so much of their time. Thanks also to our GSBA partners Equal Rights Washington (ERW), QLaw and Pflag - their members have stood shoulder to shoulder with us. I am grateful and indebted to Anne Levinson, Josh Friedes and Legal Voice for giving more time

to this effort than any could have imagined.

— Mona

Let’s pass the Employment Non-Discrimination Act! (ENDA)

The Employment Non-Discrimination Act (ENDA) was recently introduced in the Senate by Senator Jeff Merkley (OR-D) joined by Senators Susan Collins (ME-R) and Edward M. Kennedy (MA-D) and is a companion bill to H.R. 3017. The introduction of this bill marks an important day for supporters of fairness and equality. Workplace protections for LGBT people are urgently needed and long overdue. We have waited far too long for a meaningful chance to see protections from discrimination based on sexual orientation and gender identity enacted into federal law.

ENDA would ban employment discrimination on the basis of sexual orientation and gender identity. It creates express protections for lesbian, gay, bisexual, and transgender (LGBT) people similar to those available under existing federal discrimination laws for other protected classes of workers. The bill enjoys bipartisan support in Congress, and President Obama has made clear that passing an inclusive ENDA is one of the priorities of his civil rights agenda.

Currently, twelve states, the District of Columbia, and more than 100 localities have non-discrimination protections that protect all LGBT workers, covering nearly 40 percent of Americans. Additionally, more than 150 Fortune 500 companies have enacted non-discrimination policies protecting LGBT workers. These advancements are a testament to the heroic efforts of local advocates and visionary corporate leaders. These gains are also evidence of the overwhelming public support for employment protections for LGBT workers. Anti-discrimination measures have helped to protect workers in many places, but millions more remain unprotected. LGBT people continue to remain invisible on the job and many suffer open harassment and discrimination simply because of who they are. Passing ENDA will go a long way to rectify this inequity and indignity.

According to numerous surveys, 60 percent of likely voters in the United States support an inclusive federal employment non-discrimination law. The time to pass ENDA is now.

We urge Congress to take speedy action to put this bill on the President’s desk. LGBT employees work just as hard and contribute just as much as other workers. They should not have to fear losing their jobs because of their sexual orientation or gender identity.

We need to join together and engage with Congress by contacting your Senators until the bill is passed and signed into law. Visit website for steps you can take TODAY to pass an inclusive ENDA. And keep checking back—we’ll keep you posted every step of the way.