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 June 15, 2012


This is Utah SHRM Legal-mail no. 2012-14 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in an HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.














GENDER IDENTITY AS A PROTECTED CLASS- AN EVOLUTION:  For the last several years we have watched, and continue to watch, a major evolution in the definition of sex discrimination in the workplace. Today, this evolution largely means that discrimination or harassment of an employee on the basis of his/her gender identity is considered to be a form of sex discrimination. Gender identity is widely accepted to be defined as a personal conception of oneself as male or female. As you have read in these updates, a number of Utah local governments have enacted ordinances prohibiting discrimination based on sexual orientation and/or gender identity, even though no statewide law applies in Utah (many other states do have such laws). For a list of these local governments, see: Moreover, acting in a federal administrative proceeding, the Equal Employment Opportunity Commission (EEOC) recently has ruled that claims of gender identity discrimination can be asserted as claims of sex discrimination. The EEOC ruled that the gender identity issues were validly asserted under existing law because gender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms. Finally, a number of states now recognize same sex marriage and there seems to be a growing acceptance of same sex marriage on a national scale.


DEALING WITH GENDER IDENTITY AS A PROTECTED CLASS: Wise employers will proactively consider how this evolution impacts their workplaces. Certainly, at the very least, an employer must consider its possible obligations to provide benefits to same sex spouses of employees. The red flag of possible gender identity issues in discipline and termination must be analyzed as would any of the more-familiar protected classes of race, religion, age, etc. be reviewed in such situations. Employers with offices within jurisdictions that have adopted nondiscrimination ordinances should consider adding sexual orientation and gender identity to the list of protected classes in handbooks, policies and like documents. And supervisors must be trained to understand the evolving meaning of sex discrimination.  The sex discrimination laws were not understood to include sexual harassment until many years after they were passed, but now sexual harassment issues may well be the bulk of sex discrimination claims with which employers must grapple. Gender identity issues and claims may well repeat this pattern. Better to be ready to understand and manage them today rather than waiting to react to them tomorrow.


MORE ON THE NLRB AND CONCERTED ACTIVITIES: Just a few weeks ago, in these very updates, you read about the latest guidance from the National Labor Relations Board (NLRB) on how employers can lawfully regulate employee activities on social media such as Facebook. In its guidance, the NLRB is acting to enforce the National Labor Relations Act (NLRA). Many employers make the mistake of assuming that this law only applies to a business with a unionized workplace or where a union has been proposed.  Although the NLRA does apply to such businesses with such situations, it also applies to employers without unions.  The most commonly applied provision in non-union settings is Section 7 of the NLRA, the provision prohibiting an employer from discriminating against employees who engage in concerted activity.  This section permits employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Regardless of union status, employees must be free to discuss the terms and conditions of employment without fear of retaliation. In an effort to further explain the meaning of this law, the NLRB recently unveiled a website page that details the rights of employees to engaged in concerted activities. According to the NLRB, the webpage “tells the stories of more than a dozen recent cases involving protected concerted activity, which can be viewed by clicking points on a map. Among the cases: A construction crew fired after refusing to work in the rain near exposed electrical wires; a customer service representative who lost her job after discussing her wages with a coworker; an engineer at a vegetable packing plant fired after reporting safety concerns affecting other employees; a paramedic fired after posting work-related grievances on Facebook; and poultry workers fired after discussing their grievances with a newspaper reporter.” You can see the new webpage here:


THE TEN COMMANDMENTS OF HIRING: From time to time in these updates, I like to repeat the oldies but goodies, legal educational items mentioned a few years ago that still have value and resonate for employers today. Thus, a reminder about the ten commandments of hiring:


1. Follow closely all relevant company policies related to hiring, e.g. re: application and offer process, interviews, and EEO.  If you do not have any such policies, get some and train all persons who are to use them.


2. Be aware of relevant state and local laws, as well as national ones.  (e.g. – Salt Lake City local ordinance precludes discrimination based on sexual orientation, Florida based on marital status and Wyoming based on tobacco use).


3. Learn about and train all employees to avoid inappropriate inquiries.


4. Be consistent in your decisions to avoid allegations of disparate treatment.


5. Act on the basis of job-related factors.


6. Document such things as eligibility to work in the United States after job offers.


7. Carefully verify the legality of and business justification for any pre-employment testing (drugs, psychology etc.)


8. Use at-will statements and contract disclaimers on application forms and offer letters and avoid statements re: job security, probationary periods, tenure and reasons for discharge, unless you intend to create a contract, which should be done in writing.


9.  Do not make promises you may not be able to keep - (e.g. "We will review your application against future openings").


10. Be humane and professional.  Revenge is the motive for many employment lawsuits.


THE TEN COMMANDMENTS OF FIRING And because those we hire we may have to fire someday, here are the ten commandments of firing:


1. Follow closely all relevant company policies related to discharge, e.g. re: termination, progressive discipline and EEO.  If you do not have any such policies, get some and train all persons who are to use them.


2. Do not act alone.  Two heads are better than one.  Two witnesses are better than one.  Avoid the "he said/she said scenario" played out by Anita Hill and Clarence Thomas many years ago during that famous Supreme Court confirmation battle.


3. Never act out of anger. Wait until you are no longer angry and investigate thoroughly before deciding what to do. In an emergency, suspend (with pay for exempt employees).


4. Do not give assurances of job security or long-term employment. Otherwise you may be creating contracts. If you have a contract, follow it.


5. Honestly and fairly evaluate employees and performance reviews during performance reviews and document the same. In other words, be proactive in trying to avoid problems before it is necessary to terminate.


6. Act based on job-related factors, not on personality or other factors not related to the job.


7. Be consistent. Discrimination claims thrive where similar circumstances are not treated similarly.


8. Be reasonable in establishing expectations of your employees and give clear notice of the same.


9. Document your decision in writing. Remember that whatever you write will be "Exhibit A" in any lawsuit.


10. Be humane and professional. Many lawsuits are filed for reasons of revenge.


Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.


Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.