"Utah Compromise" Prohibits Employment Discrimination Based on Sexual Orientation and Gender Identity

On March 12, 2015, Gov. Gary Herbert of Utah signed into law S.B. 296, making Utah the 22nd state to prohibit discrimination in employment based on sexual orientation and the 19th state to prohibit discrimination in employment based on gender identity (plus the District of Columbia).  Called the "Utah Compromise," the bill was supported by a large margin of Utah legislators – the majority of whom are members of the Republican Party – and leaders of the Church of Jesus Christ of Latter-day Saints. 

Utah's S.B. 296 modifies a number of provisions in Utah's Antidiscrimination Act, including: (i) adding sexual orientation and gender identity as prohibited bases for discrimination in employment; and (ii) requiring employers to adopt rules and policies that permit employees to dress and utilize sex-specific facilities consistent with their gender identity.  In so doing, S.B. 296 represents a step forward for lesbian, gay, bisexual and transgender people in Utah. 

Despite its protections, S.B. 296 contains some notable exceptions.  Most significantly, the law: 

  1. Exempts from its provisions all religious organizations, corporations, associations, societies, educational institutions, and their leaders; any affiliates, subsidiaries, or agents of such entities; and the Boy Scouts of America.  This provision appears to exempt the largest corporate entity with vast real estate holdings and business ventures in the state: the Mormon Church; 
  2. Expressly protects employees' exercise of religion and permits employees to express their religious or moral beliefs in the workplace, so long as they do so "in a reasonable, non-disruptive, and non-harassing way."  Employers likely will struggle with the interpretation of this provision, as it is unclear where the line between religious expression on the one hand, and harassing behavior on the other hand, will be drawn.  It also is unclear whether businesses – or their employees – can use this provision to justifiably deny services to members of the lesbian, gay, bisexual and transgender community because of religious convictions, which currently is one of the most controversial social issues; and
  3. Prohibits employers from taking any adverse action against an employee for statements made outside of the workplace, including statements regarding their personal or religious convictions relating to marriage, family, or sexuality.  This is another provision that will require employers to find a balance between permitting employees to express themselves as the law permits and their obligations as an employer to prevent harassing and discriminatory behavior in the workplace.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.