This is Utah SHRM Legal-mail no. 2015-5 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).
LEGISLATIVE ALERT: SIGNIFICANT NEW UTAH ANTIDISCRIMINATION BILL
- SIGNIFICANT NEW ANTIDISCRIMINATION BILL PROPOSED
- WHAT IS PROTECTED?
- DRESS CODES, FACILITIES AND THE NEW PROPOSED PROTECTED CLASSES
- WARNING! NEW CAUSE OF ACTION FOR EMPLOYEE EXPRESSION
- CURRENT STATUS OF THE BILL
- BE HEARD! HOW TO CONTACT YOUR LEGISLATOR
SIGNIFICANT NEW ANTIDISCRIMINATION BILL PROPOSED: The Utah Legislature is in session until March 12, 2015. Just this week, a new antidiscrimination bill surfaced that will have significant impact on employers. The bill is SB 296, sponsored by Senator Stephen Urquhart from St. George and Senator Stuart Adams from Layton. You can read the full bill here: http://le.utah.gov/~2015/bills/sbillint/SB0296.pdf. In a nutshell, the bill implements a state-wide ban on job discrimination based on sexual orientation and gender identity. Employers should be warned, however, that it also creates a new cause of action for employees who believe their rights of expression have been inappropriately limited in the workplace. Details are discussed below.
WHAT IS PROTECTED? The bill bans workplace discrimination based on either sexual orientation and/or gender identity. It displaces local government rules that have done the same things in the past. 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.” If the bill is passed, these categories will join the well-known and established list of federal and state employment protected classes such as race, sex, age, disability, etc. The bill says that gender identity can be proved 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.”
EXEMPTIONS: 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. Interestingly, this language also seems to exempt the Boy Scouts from the state laws prohibiting discrimination based on other classifications such as race, age, disability, etc.
DRESS CODES, FACILITIES AND THE NEW PROPOSED PROTECTED CLASSES: The bill attempts to address common issues arising for employers, i.e. what restroom should be used by persons claiming a gender identity different than their biological identity or how can they dress at work? 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 reasonable accommodation requirement is new, and may well mean an employer will have to provide reasonable accommodations on such issues much like it must already do so under the Americans With Disabilities Act (ADA) for persons with disabilities.
WARNING! NEW CAUSE OF ACTION FOR EMPLOYEE EXPRESSION: 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.” Thus, for example, a bank seeking to fire a branch manager for expressing controversial views on these types of issues must be ready to prove such expression is in direct conflict with the essential business-related interests of the bank. Both provisions may result in a new type of claim/litigation against which an employer must defend itself...let’s call it expression discrimination.
CURRENT STATUS OF THE BILL: The bill already has been endorsed by the LDS Church, the LGBT community, the Governor, prominent Legislative leaders, etc. It has passed a Senate committee and appears poised to pass the Senate this week or early next week. The House likely will take it up next week before the Legislature adjourns. The bill has significant momentum behind it and likely will become law.
BE HEARD! HOW TO CONTACT YOUR LEGISLATOR: Make your voice heard on this bill! Go here to get contact information for your state representative (http://le.utah.gov/house2/representatives.jsp) and/or for your state senator (http://www.utahsenate.org/aspx/roster.aspx). Lawmakers want to hear from HR professionals on legislation that impacts the profession, so please contact them and let them know what you think of SB 296.