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SHRM Newsletter: Utah Legislature Adjourns
Posted on Mar. 13, 2015

This is Utah SHRM Legal-mail no. 2015-6 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 LEGISLATURE ADJOURNS

-  LGBT AND EXPRESSION DISCRIMINATION

-  LGBT/EXPRESSION BILL IN QUICK REVIEW

-  JOB PROTECTION FOR RELIGIOUS LIBERTIES

-  JOB BIAS BASED ON BREASTFEEDING

-  VETERAN HIRING PREFERENCES

-  NEPOTISM IN STATE EMPLOYMENT

-  MEASURES NOT ENACTED

UTAH LEGISLATURE ADJOURNS: The Utah Legislature adjourned its 2015 session on March 12, 2015. The 2015 Legislature enacted several new bills regulating employers. If the Governor does not veto these bills, they will become laws.

LGBT AND EXPRESSION DISCRIMINATION: First and foremost, the Utah State Legislature enacted a significant new antidiscrimination measure (SB 296: http://le.utah.gov/~2015/bills/static/SB0296.html). The bill replaces similar local ordinances and implements a state-wide ban on job discrimination based on sexual orientation and gender identity. It also creates a new cause of action for employees who believe their rights of expression have been inappropriately limited in the workplace or based on comments made outside of work. If you have not already done so, you will need to update your policies and employee handbooks to include these new statewide protected classes.

LGBT/EXPRESSION BILL IN QUICK REVIEW: See full details in the last update. In quick review, SB 296 bans workplace discrimination based on either sexual orientation and/or gender identity. Sexual orientation is defined as “an individual’s actual or perceived orientation as heterosexual, homosexual or bisexual.” The bill refers to the psychiatric profession’s DSM-5 (Diagnostic and Statistic Manual) for a definition of gender identity. DSM-5 defines gender identity as a “category of social identity and refers to an individual’s identification as male, female or occasionally some category other than males or female.” The bill says that gender identity can be proven by such things as “medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, part of a person’s core identity, and not being asserted for an improper purpose.”  The bill exempts religious organizations, religious corporations, religious societies, religious leaders, and their affiliates, as well as the Boy Scouts (but not the Girl Scouts), from the definition of an employer covered by the Utah Antidiscrimination Act. The bill states that it cannot be interpreted to “prohibit an employer from adopting reasonable dress and grooming standards not prohibited by other provisions of federal or state law” as long as the employer offers reasonable accommodations for all employees based on gender identity. The bill takes the same approach regarding restrooms, allowing for reasonable employer policies “that designate sex-specific facilities” provided that reasonable accommodation is made based on gender identity. The important provision here is that an employer’s sex-specific dress code or facility would still have to comply with federal law, which might impose a different result depending on the circumstances. The bill creates a new cause of action under the Utah Antidiscrimination Act for an employee who believes his/her right to express “religious or moral beliefs” at work has been infringed. Such employee expressions will be allowed at work if done in a manner that is “reasonable, non-disruptive, and non-harassing.” In other words, an employer disciplining an employee for such expression must be ready to prove that the expression was done in an unreasonable, disruptive, and harassing way. The bill also protects an employee’s expression of “religious or moral beliefs” outside of the workplace “unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.”

JOB PROTECTION FOR RELIGIOUS LIBERTIES: The Legislature also passed Second Substitute SB 297 (see: http://le.utah.gov/~2015/bills/static/SB0297.html), which provides protections to various government employees based on religious beliefs. Among other things, this bill: (1) requires county clerks to have a designee available to perform weddings (e.g. same sex weddings), essentially so that clerks themselves do not have to perform them; and (2) says religious officials cannot be required to perform marriages or provide goods or services contrary to their religious beliefs. The bill that passed is much different than the one initially proposed, which would have prohibited a government entity from terminating the employment of an employee who refused to perform a marriage against his/her religious beliefs.

JOB BIAS BASED ON BREASTFEEDING: The Legislature also passed Sub HB 105, which prohibits discrimination based on “breastfeeding or medical conditions related to breastfeeding” (see: http://le.utah.gov/~2015/bills/static/HB0105.html). If you have not already done so, you will need to update your policies and employee handbooks to include this new statewide protected classification.

VETERAN HIRING PREFERENCES: The Legislature approved HB 232 (see: http://le.utah.gov/~2015/bills/static/HB0232.html), which will allow employers to set up veteran hiring preferences without violating the Utah Antidiscrimination Act.

NEPOTISM IN STATE EMPLOYMENT: The Legislature also enacted Second Substitute HB 73 (by Rep. Bruce Cutler), which expands the current prohibitions on a public officer from employing a relative (see: http://le.utah.gov/~2015/bills/static/HB0073.html. The bill adds grandchildren and grandparents to the list of relatives.

MEASURES NOT ENACTED: The Legislature did not raise the minimum wage for tipped employees (see HB 236 at http://le.utah.gov/~2015/bills/static/HB0236.html ) or legalize the use of marijuana for medical purposes (see SB 259 http://le.utah.gov/~2015/bills/static/SB0259.html).

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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.

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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