Utah GrassRoots 2015 Legislative Report Addendum—SB296

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SB296, “Antidiscrimination and Religious Freedom Amendments”, sponsored by Senator Urquhart, Senator Adams, and Representative Dee, modifies definition provisions related to employment and housing discrimination, including:

• specifying that "employer" does not include “a religious society, a religious educational institution, or . . . the Boy Scouts of America or its councils, chapters, or subsidiaries”;
• defining "gender identity" to have “the meaning provided in the Diagnostic and Statistical Manual (DSM-5). A person's gender identity can be shown by providing evidence, including, but not 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 not being asserted for an improper purpose”; and
• defining "sexual orientation" to mean “an individual's actual or perceived orientation as heterosexual, homosexual, or bisexual.”

Furthermore, SB296:

• includes sexual orientation and gender identity as prohibited bases for discrimination in employment;
• addresses the Utah Antidiscrimination Act's application to employee dress and grooming standards: “This chapter may not be interpreted to prohibit an employer from adopting reasonable dress and grooming standards not prohibited by other provisions of federal or state law, provided that the employer's dress and grooming standards afford reasonable accommodations based on gender identity to all employees”;
• addresses the Utah Antidiscrimination Act's application to sex-specific facilities: “This chapter may not be interpreted to prohibit an employer from adopting reasonable rules and policies that designate sex-specific facilities, including restrooms, shower facilities, and dressing facilities, provided that the employer's rules and policies adopted under this section afford reasonable accommodations based on gender identity to all employees”;
• addresses employee free speech in the workplace: “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”;
• prohibits an employer from taking certain actions in response to certain employee speech outside the workplace: “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”; and
• includes sexual orientation and gender identity as prohibited bases for discrimination in housing.

It is also noteworthy that, under pre-existing antidiscrimination code, smaller employers (with less than 15 employees) would be exempt from the employment provisions of SB296.

GrassRoots Concerns with SB296

We have several concerns with SB296.

We are concerned that SB296 may further infringe on the unalienable right of individuals to exercise control of their property, contrary to the original intent of various constitutional provisions:

“No person shall be deprived of life, liberty or property, without due process of law” (Utah State Constitution, Article I, Section 7; see also United States Constitution, Fifth Amendment).

“Private property shall not be taken or damaged for public use without just compensation” (Utah State Constitution, Article I, Section 22; see also US Constitution, Fifth Amendment).

We are aware that there are differing views on what constitutes, or should constitute, lawful use of property. But if we are careless about respecting property rights, then rights of religious and other liberties are immediately vulnerable. It seems to us impossible to trample on property rights and preserve religious liberties.

How should we define lawful use of property? Governments have long been able to enforce (even if imperfectly) such standards as “Thou shalt not steal”, “Thou shalt not kill”, and “Thou shalt not lie” without trampling on unalienable rights. On the other hand, as important as is the commandment to “Love thy neighbor [probably without exceptions for race, religion, sexual orientation, or other factors] as thyself”, there is abundant reason to doubt the government’s ability to enforce it without infringing on unalienable rights. Fortunately, non-intrusive efforts by individuals, families, churches, and other associations to teach “Love thy neighbor as thyself” will not infringe on individual rights.

*We are concerned that, by exempting employers like religious societies, religious education institutions, the Boy Scouts of America, and smaller employers from various anti-discrimination requirements, SB296 may create further unequal treatment under the law, which may be contrary to our state constitution:

“All laws of a general nature shall have uniform operation” (Utah State Constitution, Article I, Section 24; see also US Constitution, 14th Amendment). Does this mean that it is OK for some to discriminate in a specific way, and it is wrong for others to discriminate in exactly the same way? We do not think this is the meaning of Article I, Section 24.

We think it is possible that the foundation belief behind this provision in our state constitution was a belief in the equality of men under the Laws of Nature and of Nature’s God: “We hold these truths to be self-evident, that all men are created equal. . .” (Declaration of Independence).

We certainly do not want to interfere with discriminatory hiring decisions by the Boy Scouts of America or by Brigham Young University. If, according to their faith, that is appropriate discrimination, then that should be their decision. But why should we treat “religious institutions” and the Boy Scouts of America different from other people (including business owners), partnerships, and associations that have faith? Is freedom of conscience and religious liberty only important to “religious institutions” and the Boy Scouts of America?

*We are also concerned that evidence and due process standards in pre-existing anti-discrimination code are inadequate. For instance, we are concerned about the following wording in Utah Code:

“[I]f the director, presiding officer, commissioner, Appeals Board, or court finds reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur, the director, presiding officer, commissioner, Appeals Board, or court may order, as considered appropriate: (a) the respondent to cease any discriminatory housing practice; (b) actual damages, reasonable attorneys' fees and costs to the aggrieved person; and (c) any permanent or temporary injunction, temporary restraining order, or other appropriate order” (Utah Code Section 57-21-11(1)).

Is “reasonable cause to believe” a good enough standard of evidence before this kind of administrative or judicial force kicks in? Or should the standard be raised to at least “a preponderance of the evidence”? If evidence and due process standards in existing anti-discrimination code are inadequate, then we should not be expanding the scope of this code.

We believe that SB296 infringes on property rights, increases unequal treatment under the law, and violates the letter and original intent of our state and national constitutions. GrassRoots favors a “no” vote on SB296.

SB296 passed the Senate 23-5 on March 6th, passed the House 65-10 on March 11th, and was signed by the Governor.