This presentation discusses best practices for employers to comply with state and federal directives, develop appropriate and inclusive policies, and encourage diversity in the workplace.

1. 27th Annual Parsons Behle & Latimer EMPLOYMENT LAW SEMINAR
LGBT RIGHTS IN THE WORKPLACE:
A CHANGING ENVIRONMENT
Maria O. Hart
Salt Lake City, Utah
TUESDAY, APRIL 28, 2015 | THE LITTLE AMERICA HOTEL
parsonsbehle.com

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Utah Code 34A-5-101 et seq.

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 Adds sexual orientation and gender
identity to the list of protected
characteristics under Utah’s employment
discrimination law.
Utah Code 34A-5-101 et seq.

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 refusing to hire
 refusing to promote
 discharging
 demoting
 terminating
 retaliating against
Utah Employers are prohibited
from:

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 harassing
 discriminating in compensation
 discriminating in any other terms of
employment
(cont.) Utah Employers are
prohibited from:

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Sexual Orientation: Defined as an
individual’s actual or perceived orientation
as heterosexual, homosexual or bisexual.
Gender Identity: Defined by reference to
the Diagnostic and Statistical Manual (DSM-
5) which refers to individuals who see and
feel themselves to be a different gender than
their assigned gender.
Key Definitions

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Protected Categories
 Race
 Color
 National Origin
 Religion
 Sex
 Age
 Disability
 Sexual Orientation
 Gender Identity

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 Employers may adopt reasonable dress
and grooming standards.
 Employers may adopt reasonable policies
that designate sex-specific facilities such
as restrooms, shower rooms, and dressing
facilities.
Dress Codes & Restrooms

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 Excluded religious groups expanded to
include:
– religious organizations
– religious associations
– religious corporations
– religious societies
– religious educational institutions and leaders
– the Boy Scouts of America
Religion

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 The new law supersedes and preempts
any laws, ordinances or regulations
related to the prohibition of employment
discrimination passed by a city, county or
other local or state governmental entity.
 The state antidiscrimination division
handles filed complaints.
 Actual damages vs. punitive damages.
Enforcement

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 Background
– Executive Order 13087
– Title VII
– DOMA
 Changes Leading up to Executive Order
13672
Understanding the New Federal
LGBT Anti-discrimination Rule

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 In November 2013, the EEOC issued
guidance stating that federal employees
who believe they have been discriminated
against on the basis of sexual orientation
have a right to pursue discrimination claims
under Title VII.
– http://www1.eeoc.gov/federal/directives/lgbt_complaint_
processing.cfm?renderforprint=1
EEOC Guidance

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 Signed by President Obama on July 21, 2014.
 Prohibits discrimination based on gender identity
in federal employment and discrimination based
on sexual orientation and gender identity in
federal contracting.
 Final Rule implementing EO 13672 was
published by OFCCP on December 9, 2014.
 Effective for all new and modified contracts
beginning on April 8, 2015.
Executive Order 13672

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 Prohibits discrimination based on sexual
orientation and gender identity.
 Applies to contracts and subcontracts in excess
of $10,000 that are issued or modified on or
after April 8, 2015.
 Significant Changes:
– Equal Opportunity Contract Clause
– Job Advertisement Tag Line
– EEO is the Law Poster
– Visa Reporting Requirements
OFCCP Final Rule: What’s Changing

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 www.dol.gov/ofccp/LGBT
 www.dol.gov/ofccp/LGBT/LGBT_resources.html
Department of Labor Resources

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 What You Should Know About EEOC and the
Enforcement Protections for LGBT Workers
http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm
 Fact Sheet on Recent EEOC Litigation-Related
Developments Regarding Coverage of LGBT-
Related Discrimination Under Title VII
http://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm
 List of Federal Sector Cases Involving
Transgender Individuals; List of Federal Sector
Cases Involving Lesbian, Gay, or Bisexual
Individuals
http://www.eeoc.gov/eeoc/federal/reports/lgbt_cases.cfm
EEOC Resources

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 Section 1557 of the ACA, 42 U.S.C. § 18116, prohibits
discrimination on the basis of sex (among other bases)
in health programs or activities of covered entities.
 Interpreted by HHS Office of Civil Rights in a July 12,
2012 letter to include claims of discrimination based on
gender identity or failure to conform to gender stereo-
types.
 HHS plans to issue a proposed rule in April 2015.
 Some state insurance regulators cite this provision in
mandating equal treatment of transgender insureds.
Affordable Healthcare Act

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 Pursuant to the ACA’s provision guaranteeing availability of
coverage, Centers for Medicare & Medicaid Services
(CMS) issued regulations providing that health insurers
participating in the group or individual markets cannot use
“marketing practices or benefit designs” that discriminate
on the basis of sexual orientation or genre identity.
– A CMS FAQ sheet clarifies that this means same-sex
spouses must be offered coverage on the same terms and
conditions as opposite-sex spouses.
– https://www.cms.gov/CCIIO/Resources/Regulations-and-
Guidance/Downloads/frequently-asked-questions-on-
coverage-of-same-sex-spouses.pdf
Affordable Healthcare Act (cont.)

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 The Department of Labor issued guidance changing the
“state of residence” rule to a “place of celebration” rule
for the definition of spouse under the FMLA regulations.
 The Final Rule changes the regulatory definition of
spouse in 29 CFR §§ 825.102 and 825.122(b) to look to
the law of the place in which the marriage was entered
into, as opposed to the law of the state in which the
employee resides.
 A place of celebration rule allows all legally married
couples, whether opposite-sex or same-sex, or married
under common law, to have consistent federal family
leave rights regardless of where they live.
FMLA

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 This definitional change means that eligible employees,
regardless of where they live, will be able to take FMLA
leave to:
– care for their lawfully married same-sex spouse with a
serious health condition.
– take qualifying exigency leave due to their lawfully married
same-sex spouse’s covered military service.
– take military caregiver leave for their lawfully married
same-sex spouse.
FMLA (cont.)

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 Eligible employees may also take FMLA leave to care for
their stepchild (child of employee’s same-sex spouse)
regardless of whether the in loco parentis requirement of
providing day-to-day care or financial support for the
child is met.
 Eligible employees may also take FMLA leave to care for
a stepparent who is a same-sex spouse of the
employee’s parent, regardless of whether the stepparent
ever stood in loco parentis to the employee.
FMLA (cont.)

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 Changes were to be effective March 27, 2015.
 Four states that do not recognize same-sex marriages
challenged the Department of Labor’s revised definition of
“spouse” which would require employers in all states to
extend FMLA leave for care of same-sex or common law
spouses as long as the marriage was legal in the state in
which it took place. Texas, Louisiana, Arkansas and
Nebraska filed suit in federal court seeking to block this
revised rule, arguing that compliance with the federal rule
results in violation of the state’s prohibition on recognition of
same-sex marriages.
…but…

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 The United States District Court for the Northern
District of Texas granted a preliminary injunction
with respect to the Department's Final Rule
revising the regulatory definition of spouse under
the Family and Medical Leave Act (FMLA).
 The Department of Labor is abiding by the
injunction.
 A hearing date was set for April 10th.
Please Hold

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 Review and understand the new laws –
state and federal.
 Revise harassment and retaliation policies
to include sexual orientation and gender
identity as prohibited bases for
harassment and retaliation.
Best Practices

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 Review your employee handbook, your job
applications, your recruiting and training
materials, and your website.
 Train managers and supervisors on the
new law.
Best Practices

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 Train hiring personnel
– Limit who is allowed to interview and make
sure they are carefully trained in what to do
and what not to do.
Best Practices

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 Maria O. Hart
208.562.4893
mhart@parsonsbehle.com
Thank You