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Utah SHRM Newsletter - Legislative Alert - Part I
Posted on Feb. 8, 2013

This is Utah SHRM Legal-mail no. 2013-3 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). 

CONTENTS:

UTAH LEGISLATIVE ALERT- SEXUAL ORIENTATION DISCRIMINATION

-  SUMMARY AND BACKGROUND

-  CURRENT LAW

LOCAL ORDINANCES

-  ATTEMPTS TO CHANGE FEDERAL AND STATE LAW

-  CURRENT DISCUSSIONS ABOUT SEXUAL ORIENTATION LEGISLATION

SUMMARY AND BACKGROUND: The Utah Legislature, in its annual lawmaking session lasting until March 14, 2013, may soon consider a major change to the law prohibiting employment discrimination in the state. News reports indicate that legislators are in active discussions with stakeholders, including the LDS Church, about possibly amending the Utah Antidiscrimination Act to prohibit employment discrimination based on sexual orientation. Because this would be an important change to Utah law, employers should understand and consider the matter and determine if and how they wish to participate in the discussion. Some details are outlined below.

CURRENT LAW: Neither federal law nor Utah law expressly prohibits discrimination based on sexual orientation, even though about half of the states do have statutes expressly prohibiting such job bias. Here is a link to the Utah law (it applies to entities with 15 or more employees): http://le.utah.gov/code/TITLE34A/htm/34A05_010600.htm. The protected classes listed in the Utah law are: “race; color; sex; pregnancy, childbirth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion; national origin; or disability.” Some courts have interpreted existing Utah and federal law in a manner that protects a person’s sexual orientation. For example, the courts prohibit same sex (male-on-male or female-on-female) harassment. The courts also have allowed claims based on gender stereotyping (e.g., an employer firing a male because he was perceived as being too feminine). However, other than these court rulings, in states without sexual orientation discrimination laws, regulation of the workplace on this issue has been left to local jurisdictions.

LOCAL ORDINANCES: In the Fall of 2009, the Salt Lake City Council prohibited private employers (15 or more employees) within the SLC limits from discriminating in employment against “otherwise qualified” persons (applicants and employees) based on sexual orientation or gender identity. The ordinance took effect on April 2, 2010. State entities (except SLC), religious organizations and “expressive organizations” are exempted from the ordinance. “Sexual Orientation” is defined as “a person’s actual or perceived orientation as heterosexual, homosexual, or bisexual.” “Gender Identity” is defined as “a person’s actual or perceived gender identity, appearance, mannerisms, or other characteristics of an individual with or without regard to the person’s sex at birth.” The phrase “Otherwise Qualified” means “a person who possesses the following required by an employer for any particular job, job classification, or position: 1. education; 2. training; 3. ability; 4. moral character; 5. integrity; 6. disposition to work; 7. adherence to reasonable rules and regulations; and 8. other job related qualifications required by an employer.”  The ordinance does not create a cause of action or claims for individual damages, but rather creates an administrative process that could result in employment discrimination claims brought before SLC Justice Courts. The ordinance allows for fines up to id="mce_marker",000 per offense. The ordinance also prohibits retaliation against persons raising complaints. Covered employers now should be in compliance.  At a minimum, covered employers should revise their employee handbooks, policies, practices, training materials, etc. to reflect these new protected employment classifications and the other requirements of the ordinance. About a dozen other local governments in Utah have adopted similar ordinances. For more information from a group supporting such laws, see: http://www.equalityutah.org/nondiscrimination.

ATTEMPTS TO CHANGE FEDERAL AND STATE LAW: There have been a number of unsuccessful attempts to change federal and Utah law and prohibit job discrimination based on sexual orientation. At the federal level, Congress has had the chance to consider the Employment Nondiscrimination Act (ENDA), which would add sexual orientation to the list of federal protected classes. Click here for some background information on ENDA: http://en.wikipedia.org/wiki/Employment_Non-Discrimination_Act.  The Utah Legislature has considered (and rejected) similar provisions in past years.

CURRENT DISCUSSIONS ABOUT SEXUAL ORIENTATION LEGISLATION: On February 8, 2013, the Salt Lake Tribune reported that there are ongoing serious negotiations underway to prohibit sexual orientation job bias statewide. See:   http://www.sltrib.com/sltrib/politics/55790742-90/attorneys-ban-bill-church.html.csp.

Although a bill file has been opened by Utah Sen. Curt Bramble, there is no legislation available for public review yet and the possible contours of a proposed statute are unknown. The Tribune article indicates that there will be both support for and opposition to such a bill. Employers interested in this issue should contact their legislators and express their opinions about the pros and cons of changing Utah law to prohibit job discrimination based on sexual orientation.  You can find a list of state legislators (Senators) here: http://www.utahsenate.org/aspx/roster.aspx and (Representatives) here: http://le.utah.gov/house2/representatives.jsp.  Stay tuned for developments!

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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

OBrienAV

OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012