Utah legislators made national headlines last night when they approved a bill providing antidiscrimination protections to LGBT employees coupled with protections for religious expression in the workplace. Titled the Utah Antidiscrimination and Religious Freedom Act (the “Act”), the bill received support from across Utah’s political spectrum, including the Church of Jesus Christ of Latter-Day Saints, the ACLU of Utah, and some of Utah’s leading LGBT advocacy groups. Utah Governor Gary Herbert has pledged to sign the bill into law later today.
The bill could serve as a template for other so-called “Red States” also seeking to balance concerns about religious liberty and expression with the need for workplace antidiscrimination protections for LGBT employees. Our objective in this article is to describe how the new law will impact Utah employers, their obligations under the Act, who is protected and who is exempt, and how the law’s religious belief protections for employees are meant to apply.
Who Is Covered by the Act
Similar to Title VII of the federal Civil Rights Act, the Utah Act does not apply to employers with fewer than 15 employees, religious sole corporations, corporations wholly owned by religious organizations such as church-controlled educational institutions, associations or societies. The Utah Act goes beyond the familiar Title VII exemptions to exclude from coverage corporations or associations that are “affiliates” of a religious organization. For example, a publishing company or social services organization closely affiliated with a religious organization would be excluded from coverage, even if it is not wholly owned by the organization. Somewhat surprisingly, the Boy Scouts received its own specific exemption.
What Conduct is Prohibited
The Act prohibits workplace discrimination on the basis of sexual orientation and gender identity on the same terms as discrimination on the basis of race, gender, national origin or other protected classes. This includes discrimination in recruitment, hiring, compensation, promotion, discipline, discharge and all other terms and conditions of employment. The Act defines “sexual orientation” as “an individual’s actual or perceived orientation as heterosexual, homosexual, or bisexual.” The Act provides that the term “gender identity” has the “same meaning as provided in the Diagnostic and Statistical Manual (DSM-5),” and identifies certain avenues for establishing an individual’s gender identity.
Under the Act, an employer may implement reasonable dress and grooming standards not otherwise prohibited by law. An employer may also establish reasonable rules and policies regarding sex-specific facilities like restrooms and dressing rooms. Rules regarding these facilities must, however, afford reasonable accommodation based upon gender identity.
How Religious Beliefs Are Protected
The Act contains specific provisions protecting the religious beliefs of employees and other individuals. For example, the Act allows employees to express their “religious or moral beliefs and commitments” in the workplace, so long as those expressions are not disruptive, harassing or “in direct conflict with the essential business-related interests of the employer.” Expanding on this idea, the Act further protects employees from adverse employment action based upon lawful, off-duty expression or expressive activity “regarding the person’s religious, political, or personal convictions, including convictions about marriage, family or sexuality” as long as the off-duty expressive conduct does not “direct[ly] conflict with the essential business-related interests of the employer.”
What This Means for Utah Employers
The antidiscrimination provisions of the Act protecting LGBT individuals will be familiar to most employers. Employers should ensure that their employees understand the law’s requirement that they treat all co-workers with dignity and respect and that employment actions must be based on legitimate business reasons, not sexual orientation or gender identity. Similarly, the provisions regarding dress and grooming standards and sex-specific facilities should follow the similar analysis of business need and accommodation that employers already use in addressing religious or disability accommodation. This might require, for example, that an employer with transgendered employees review and revise its policies regarding restroom or dressing room facilities, and how accommodations of the needs of transgendered employees will be met.
The law’s protections of religious and other expression in and out of the workplace charts new territory. The protections are broad and employers should review their guidelines on solicitation and expression to ensure that they take into account the Act’s new obligations. Employees will be free to express their religious or moral beliefs in a non-disruptive, non-harassing way, at least to the extent that other employee expression is allowed. These workplace protections do not, on their face, extend to protect employees who refuse to perform certain tasks or work with specific employees or groups based upon their religious or moral beliefs. As you might expect, this might lead to some complicated situations. For example, an employee who opposes same-sex marriage on religious grounds could be required to work on a team with LGBT or other employees who do not oppose same-sex marriage. Both employees will, however, be able to express their views on marriage in non-disruptive, non-harassing ways. Employers will need to find a way to navigate this delicate balancing act.
In addition, the means by which an employer can show that expressive conduct is in direct conflict with its essential business-related functions is not entirely clear. For many employers, the religious or moral views of employees are unlikely to directly conflict with essential business-related interests. Some employers might argue, however, that presenting an image of diversity and inclusion is an essential business related interests. Off-duty employee participation in rallies or activities opposing the expansion of the rights of LGBT employees, or religious employees for that matter, might be seen as directly conflicting with those employer interests. Finally, the Act does not expressly limit its protection of expression or expressive conduct connected with marriage, family or sexual orientation. In fact, it expressly protects off duty expression of religious, political or personal convictions, including but not limited to marriage, family or sexuality. This provision could be interpreted to protect a broad range of social, political and religious causes that might be considered controversial and socially divisive. The uncertain scope of these protections for on- and off-duty expressive conduct suggests that employers proceed with caution before taking adverse action against such conduct.
The Act is a signature development in the protection of LGBT employees against workplace discrimination in Utah and elsewhere. It also represents a nuanced and thoughtful attempt to balance those protections with the religious beliefs and sensibilities of employees and other individuals in the workplace. With change, however, comes uncertainty, and employers must carefully consider how their workplace policies should be adapted or modified to address the new obligations arising from the bill now awaiting Governor Herbert’s signature.