Employee Protections in the new Utah Anti-discrimination Ordinance

The Church and gay rights groups such as the Human Rights Campaign both came out yesterday in favor of S.B.296 entitled Antidiscrimination and Religious Freedom Amendments. This bill strikes a good balance between anti-discrimination and religious freedom because it essentially just adds sexual orientation to existing legislation regarding race and gender which in Utah is quite protective of the Church.

There are a couple of nice new additions such as an exemption for the Boy Scouts which is Constitutionally required by the 2000 Boy Scouts v. Dale Case (though I though I found it strange that the Boy Scouts were singled out even though there may be other expressive organizations which fall under the Dale decision), and making it clear that “a religious leader, when that individual is acting in the capacity of a religious leader” is not an employer for discrimination purposes. There were also a couple of novel provisions needed for the addition of gender identity to the group of protected classes: Employers are expressly allowed to have separate gender facilities (bathrooms etc) and also allowed to have uniforms, but must offer reasonable accommodations to trans-gender individuals. I think all of this is quite rasonable and strikes the right balance.

There is one section which is substantively completely new that I have seen little to no focus on. It is a provision that I would expect would elicit much more controversy especially from libertarian groups who focus on employer freedoms. This section makes it illegal for an employer to fire an employee for the expression of religious belief in the work place and also prohibits firing employees for “expressive activity outside of the workplace” on “the person’s religious, political, or personal convictions.”

 34A-5-112. Religious liberty protections — Expressing beliefs and commitments in
workplace — Prohibition on employment actions against certain employee speech.
(1) An employee may express the employee’s religious or moral beliefs and
commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.
(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or
retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and
conditions of employment against any person otherwise qualified, for lawful expression or
expressive activity outside of the workplace regarding the person’s religious, political, or
personal convictions, including convictions about marriage, family, or sexuality, unless the
expression or expressive activity is in direct conflict with the essential business-related
interests of the employer.

The first provision regarding religious speech in the workplace might be of limited applicability. It is clear that an employer can ban all expression of belief or commitments” such as discussion of politics,or religion. However, if the employer allows some such expressions he must also allow religious expressions. The speech must also be done in a “reasonable,” “non-disruptive,” and “non-harassing” way which gives pretty wide latitude to employers to determine that religious speech is not reasonable or unacceptable. Finally, if the speech conflicts with the essential business-related interest of the employer it can be prohibited. I think this provision will likely just cause employers to draft stronger policies against speech on controversial issues in the workplace. The threat of possible litigation might help deter an employer from firing a religious individual for mentioning her belief, which seems to me to be a net positive. It also sends a strong message that religious speech is equivalent to speech and can not uniquely be excluded

The second provision on expressive activity is on the other hand a really big deal. This would make Utah one  of a  select few states where individuals cannot be fired as a result of their political views. While Utah would not join Louisiana, California, Connecticut and South Carolina which guarantee employees the right to talk about politics in the workplace as well as outside, it would join a small group of states such as California, Colorado, New York and North Dakota which offer off-duty protections. The religious liberty protections also seem strong here, as it would likely prevent things such as the firing of the Atlanta Fire Chief for the publication of a book critical of homosexuality.or individuals fired for content on religious blogs. This provisions also has the exception for the business-related interests of the employer, but this seems much narrower in the context of off the clock expressive activity.

These changes are major and have significant implication, which is why I am surprised they have not gotten much attention yet.

I admit that I am really pleased by the second provision in particular. As one who blogs about religion and touches on controversial political and social topics such as gay marriage and abortion I am heartened and excited that Utah is passing protection for such speech. Though I do not hope to work in Utah for long after graduating law school, I hope that this approach spreads to other states. While I think employers should have great freedom about the employees they argue, I think that such provisions strike the proper balance in offering protection from termination over expressive activities unrelated to the business. It has always seemed somewhat wrong to me that individuals could be fired for private speech done outside of the confines of work.

I hope that this provision gets more attention and debate before the bill is voted on, and that these provisions become templates for other states as well.

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