'Utah Compromise' one step ahead of recent U.S. Supreme Court ruling

By Tanner Bean

When it comes to religious freedom and LGBTQ rights, it seems like tensions are high. The media frequently reports as if the faith and LGBTQ communities are at war. As an employer, it can be difficult to know what to do when these issues enter the workplace. Employees do not shed their religious beliefs when they clock in. Neither do LGBTQ employees leave their identities at home before showing up for the day.

Utah employers operate in a state that has crafted one-of-a-kind legislation with the aim of addressing perceived culture war conflicts. In 2015, the Utah Legislature passed a set of bills ensuring that religious and LGBTQ employees can bring their whole selves to work to maximize their on-the-job performance. That law has become known as the “Utah Compromise.” Not only does it protect employees from discrimination based on sexual orientation and gender identity, it also includes additional protections for employees of faith above and beyond those provided more generally by Title VII’s ban of religious discrimination. Because of this, Utah is the only state in the country to address faith, sexual orientation and gender identity together — all others have acted on LGBTQ discrimination or religious freedom in isolation.

On June 15, the United States Supreme Court nationalized part of what Utah had done years before — ban sexual orientation and gender identity in the workplace. In the court’s landmark ruling, Bostock v. Clayton County, the court stated that both sexual orientation and gender identity discrimination are just forms of sex discrimination, which Title VII has long prohibited. While that ruling will have far-reaching effects yet to be seen, it does not alter the nondiscrimination rules Utah employers have operated under since 2015.

Together with this new decision, Utah’s unique laws call for careful attention to workplace policies. A boilerplate employment handbook simply won’t do. In fact, the need for tailored employment policies around diversity, inclusion and equal protection are well demonstrated in Utah. Since the Utah Compromise took effect in May 2015, 229 religious discrimination claims and 92 LGBTQ discrimination claims have been filed against employers. But employers attentive to the spirit of the Utah Compromise can fend off such liabilities.

At a minimum, the Utah Antidiscrimination Act, as amended by the Utah Compromise, and Title VII require employers with 15 or more employees to remain vigilant as to religious, sexual orientation and gender identity discrimination, which manifest as a refusal to “hire, promote, discharge, demote, or terminate a person, or to retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment.” Only certain employers, like religious, LGBTQ or political organizations, may, as a “bona fide occupational qualification,” require their employees to match their values of faith, sexual orientation or gender identity.

The Utah Compromise also compels employers to reasonably accommodate the needs of religious and transgender employees. Employers must provide religious accommodations to employees where doing so would not impose an undue hardship upon the employer. Similarly, employers must provide transgender employees with reasonable accommodations in relation to dress and grooming standards and sex-specific facilities like restrooms and locker rooms. The nature and scope of both religious and transgender accommodations are employer-specific. Indeed, the law requires these accommodations to be tailor-made, factoring in an employer’s size, business operations, business demands and other considerations.

Perhaps the most unique protection the Utah Compromise provides is an employee speech protection. Employees are permitted to express any viewpoint regarding marriage, faith, sexuality and gender identity without reprisal, as long as it is expressed in a “reasonable, non-disruptive and non-harassing way.” These sorts of expressions, whether made inside or outside the workplace, cannot be the basis for an employer’s negative action against an employee. Employers are permitted to restrict such speech only if, 1. the employer restricts speech on all similar topics, too, i.e., also restricting speech about politics, culture and sports, or, 2. such speech would be “in direct conflict with the essential business-related interests of the employer,” i.e., an LGBTQ advocacy organization, a religious organization or a political organization with particular views about faith, sexuality or gender identity.

For employers, there’s more behind the Utah Compromise than just a compliance hurdle. If properly implemented, the protections afforded by the Utah Compromise will create a welcoming and neutral workplace where all employees can feel comfortable and valued. And business owners and supervisors can be sure that whatever their personal views on faith, sexuality, or gender, they can promote an environment of efficiency. In the end, the Utah Compromise is about maximizing employee potential by sweeping away irrelevant characteristics from the business task at hand. By allowing employees to bring their whole selves to work, businesses can reach their full potential. Employers that invest a bit of time tailoring the Utah Compromise to their workspaces will reap those benefits.

Tanner Bean is an employment law, litigation and appellate attorney at Fabian VanCott in Salt Lake City. He regularly writes and presents on the topics of religious freedom, LGBTQ nondiscrimination and legal approaches that deescalate culture war conflicts.