Last night, the Utah House passed landmark legislation (the "Act") already approved by the Senate that modifies Utah's antidiscrimination and fair housing acts to provide protection for lesbian, gay, bisexual, and transgender individuals in both the employment and housing contexts.1 Governor Herbert has promised to sign it. Unlike similar legislation in other states, the Act seeks to balance the newly recognized antidiscrimination rights with the right to religious and political belief, and freedom of expression. While heralded as a remarkable achievement of cooperation across political and religious spectrums, employers are left to navigate a somewhat uncertain landscape.
While religious organizations and the Boy Scouts of America are expressly exempt, private employers with more than 15 employees face liability for noncompliance. Beyond the new LGBT provisions, employers also face new protections afforded to all employees (even those who are religiously, politically or morally opposed to LGBT rights). Employees may not be subject to an adverse employment action because of the "reasonable, non-disruptive, and non-harassing" expression of religious or moral beliefs within the workplace, or for lawful expressive activity regarding religious, political or personal convictions outside of the workplace, except where such expressions directly conflict with an essential business-related interest of the employer. Employers are permitted to adopt reasonable rules and policies for dress and grooming standards, and that designate sex-specific facilities, including restrooms and dressing facilities, provided that reasonable accommodations are afforded based on gender identity.
On its face, it appears that employers may comply with the Act by merely adding sexual orientation and gender identity to the list of protected classes. However, employers should not overlook the broad protections afforded employees for religious, moral and political expression. Undoubtedly, many questions and controversy will arise as employers seek to interpret these provisions of the Act, such as: How and whether an employer should address an employee’s at-work expression of religious or moral beliefs about the LGBT lifestyle that some may find offensive? What reasonable accommodations (as to restroom facilities, or dress and grooming standards) must an employer afford to an employee based on gender identity? When does an employee’s expression of religious, political or moral opinion (such as in a Facebook post or making a high profile political donation in support of a referendum) come into direct conflict with an employer’s essential business-related interest? As these and other questions arise, employers should seek legal counsel to determine how best to comply with the Act and avoid liability.
It is not clear when the Act will become effective, though employers are advised to begin the process of revising handbooks, policies and practices. Employers should consider providing training to management and non-management employees about the changes they implement, and to provide sensitivity training.
For more information or if you have questions, contact Gregory M. Saylin, Tyson C. Horrocks or Kristen Olsen in Dorsey & Whitney’s Salt Lake City office, or any Dorsey & Whitney labor & employment attorney.
1. The full text of the Act may be found here.