SALT LAKE CITY — State lawmakers, with much fanfare, passed a new law seeking to balance religious freedom and protections for LGBT Utahns against discrimination in the workplace and housing.
But now that the cheering and back-slapping are over, employers are trying to understand how it affects them, and how to handle inevitable disputes and keep from getting sued.
"I think everyone's trying to get their head around it and figure out what it means and how to implement it," said Greg Saylin, a Salt Lake attorney who specializes in labor and employment law.
SB296 adds sexual orientation and gender identity to the list of protected classes in the state's anti-discrimination laws for housing and employment. It applies to businesses with 15 or more workers and landlords with four or more units.
The law, which takes effect Tuesday, also prohibits employers from disciplining or firing a person for expressing religious, moral and political beliefs, including convictions about marriage, family and sexuality, on and off the job, as long as it's not harassing, disruptive or counter to a company's business interests.
It also allows companies to set dress and grooming standards, and designate men's and women's restrooms, provided they make "reasonable" accommodations for transgender workers.
The legislation supersedes a patchwork of local nondiscrimination laws in about 20 Utah communities and applies across the state.
"It is new legal ground," said Monica Whalen, president and CEO of the Employers Council, an association of 575 businesses statewide that offers employment law consultation and advice.
Whalen said there will be a learning curve as people work through issues to discover how to get along.
"From my perspective, it all comes down to treating each other with mutual respect," she said. "If we act from that inner core of treating each other with respect, then we'll steer clear of the majority of conflicts."
Still, Whalen and Saylin say they expect to see lawsuits as a result of the law.
And the Utah Anti-discrimination and Labor Division, the state agency charged with mediating disputes, anticipates not only an initial bump in the number of claims but a change in the kinds of claims.
"It will be interesting to see the types of complaints that we receive that aren't the traditional religious ones that we have seen," said Kerry Chlarson, director of the division.
On its face, it appears employers could comply by merely adding sexual orientation and gender identity to the list of protected classes.
But Saylin said the law is much broader than that, and could raise all sorts of questions and controversy as businesses try to interpret its meaning. Issues might include:
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 for restroom facilities or dress and grooming standards must an employer give an employee based on gender identity?
When does an employee’s expression of religious, political or moral opinion conflict with an employer’s essential business-related interest?
"I could only imagine we're going to see some litigation," Saylin said.
For example, what if a same-sex couple invites colleagues to a party celebrating the adoption of a child and a co-worker expresses the opinion that adoptions are morally wrong and invokes the name of God.
The employer would have to decide whether the speech was disruptive or harassing.
That could put employers in a tight spot because they could be sued by both people who express their beliefs in the workplace and those who might find the expressions offensive, Saylin said. Both could also file claims with the labor division.
"The key for us will be the role the employer plays in that," Chlarson said. "Do they get involved in it? Do they favor one side over the other? That obviously is filled with land mines for them to make sure they do it properly."
The anti-discrimination and labor division receives about 560 employment claims a year, including six to 12 involving LGBT workers, he said.
The Williams Institute at the School of Law estimates 55,000 LGBT adults live in Utah, including 37,000 in the workforce.
In response to a 2010 survey, 43 percent of lesbian, gay and bisexual Utahns and 67 percent of transgender residents reported being fired, denied a job, denied a promotion, or having experienced other forms of discrimination at some point in their lives, according to the institute, which studies sexual orientation and gender identity law and public policy.
The Utah new law significantly changes the concept of at-will employment now that workers have protection to express themselves both on and off the job, Saylin said. At-will companies can fire someone for any reason.
"I think employers would be wise to train their supervisors on these issues because it really creates differences in the workplace from what we've been used to in a typical at-will environment," he said.
Health Catalyst, a Salt Lake-based health care IT analytics company with 330 employees, plans to review the law with supervisors and non-supervisors, even though it already has policies against discrimination based on sexual orientation and gender identity.
"We just want to make sure that we're comprehensive in the training," said Linda Llewellyn, Health Catalyst human resources director.
Though many companies already include language from the bill in their policies, most are still learning how it impacts them and will be implementing the needed changes, according to the Salt Lake Chamber, which promoted the legislation.
Whalen said Utah businesses recognize that to compete for top talent across the country they need to embrace an inclusive approach to the LGBT community.
"Anecdotally, we are not hearing a swell of resistance or animosity toward this law," he said.
One of the trickier parts of the new law deals with bathrooms and dress and grooming.
The law allows businesses to set dress and grooming standards and maintain separate restrooms and shower facilities for men and women, but requires reasonable accommodations based on gender identity for all employees.
Saylin said because what's reasonable is subjective, the law doesn't give employers a lot to go on.
"This is an area where we have more questions than answers," he said.
Chlarson agrees, saying he expects the interpretation of reasonable to be at the center of most issues brought to the labor commission.
"That differs from person to person, and if that is the dispute, it's rightly before us to consider," he said.
Chlarson said the labor division intends to put together training for employers after it sees the types of complaints that come in based on the new law. He said that would give them a chance to assess where companies struggle or are confused.
"We really don't know for sure where this is going to go," he said.
Sen. Stuart Adams, R-Layton, who co-sponsored the legislation, said employers already face liability with situations that might arise and the law is intended to give them parameters and guidelines and a process for dealing with them.
"We thought we lifted quite a few burdens," he said.
Still, he said drafters of the bill knew adjustments might need to be made.
Dealing with SB296
What businesses need to do:
Update anti-discrimination and harassment policies and employee handbooks to include sexual orientation and gender identity protections.
Include the new areas of prohibited discrimination in harassment training for employees.
Review policies and provisions regarding employee communications to ensure they don't prohibit lawful religious, moral and political expression.
Ensure managers and supervisors understand the new rights afforded employees regarding sexual orientation, gender identity and speech.
What businesses are advised to do:
Review dress and grooming policies to make sure they are reasonable and based on legitimate business needs, and be prepared to offer reasonable accommodation based on gender identity.
Review restrooms and dressing facilities, and consider designating a single-stall restroom as gender neutral.
Create a review process that includes human resources and legal counsel before disciplining or firing an employee for expressing his or her beliefs.
Source: Employers Council
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