Strengthening Utah communities, defending human rights.
Restore Our Humanity's analysis of SB 296
SB 296 adds sexual orientation and gender identity to the non-discrimination laws that already exist in Utah.
An employer may not refuse to hire, promote, discharge, demote, or terminate a person, or to retaliate against, harass, or discriminate in matters of compensation or in terms of, privileges, and conditions of employment against a person otherwise qualified, because of: race, color, sex, pregnancy, age, religion, national origin, disability, sexual orientation, gender identity.
This bill: modifies definition provisions related to employment and housing discrimination, including defining "employer," "gender identity," and "sexual orientation"; includes sexual orientation and gender identity as prohibited bases for discrimination in employment; provides that the remedies in the Utah Anti discrimination Act and the Utah Fair Housing Act preempt local government remedies; provides that protections for employment and housing do not create a:
Special or protected class for other purposes; modifies powers of the Division of Anti discrimination and Labor; addresses the Utah Anti discrimination Act's application to:
- employee dress and grooming standards;
- sex-specific facilities;
- freedom of expressive association and the free exercise of religion;
- addresses employee free speech in the workplace;
- rohibits an employer from taking certain actions in response to certain employee speech outside the workplace;
[This works both ways; ‘employee free speech in the workplace’ does not mean that you will be subject to religious bullying in the workplace, because it gives you equal rights to express your opinions and beliefs as well. As an employee of the state, our director has often wondered if the outside activities with Restore Our Humanity could cause problems at work, including termination for out the workplace activities, this clause protects all of us.]
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 the 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.
- 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 express 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.
[This is a big one for us activists]
“Employer” does not include: A religious organization, religious corporation sole, religious society: or The Boy Scouts of America or its councils or subsidiaries.
[To the best of our knowledge, many of the LDS organizations described here, except BSA, require current Temple Recommends as a condition of employment. Has anyone questioned the constitutionality of that? This does not prevent anyone from working for one of these organizations if you choose to, it just says that you will not be covered under the state’s non-discrimination laws, just like it was last week, last month and last year. The BSA clause is moot. Boy Scouts of America were given the right to discriminate in 2000 by the Supreme Court of the United States in Boy Scouts of American v. Dale. The only remedy for the BSA clause would be to take it back to the Supreme Court and have Dale reversed.]
The Definitions used in the bill are as follows:
“Gender identity” has the meaning provided in the Diagnostic and Statistical Manual (DSM-5) A person’s gender identity can be shown by providing evidence, including, but no limited to, medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, part of a person’s core identity, and no being asserted for an improper purpose.
[It is our opinion that this should include “gender expression” in the definition]
“Sexual orientation” means an individual’s actual or perceived orientation as heterosexual, homosexual, or bisexual.
[They left out simply fabulous]
57-21-3, This chapter does not apply to a single-family dwelling unit sold or rented by its owner if: the owner is not a partnership, association, corporation, or other business entity; the owner does not won an interest in four or more single-family dwelling units held for sale or lease at the same time. During a 24-month period, the owner does not sell two or more single-family dwelling units in which the owner was not residing or was not the most recent resident at the time of sale; the does not retain or use the facilities or services of a real estate broker or salesperson; and the owner does not use a discriminatory housing practice under Subsection 57-21-5 in the sale or rental of the dwelling.
[It was explained to us, that the four dwelling cutoff is where the State of Utah commerce code differentiates between personal and private property and commerce. This is the same rule in the employment number of companies with 15 or more employees]