By: Mark A. Wagner, Employment and Litigation Attorney
March 7, 2019
Prince Yeates employment lawyers Mark Wagner and John Chindlund recently completed a broad summary of Utah employment law for inclusion in an upcoming compendium of state labor and employment laws for Primerus, an exclusive international society of nearly 200 independent peer-reviewed law firms in more than 40 countries. Although the summary was generally intended to educate in-house counsel and other Primerus member law firms, we thought we would share it with you in a series of weekly FAQs over the next several months. Our seventh installment is below.
Question of the Week: Does Utah state law prohibit discrimination and hostile work environments?
The Utah Antidiscrimination Act (UADA), Utah Code § 34A-5-101, et seq.
The UADA applies to all employers included in the statute’s definition of “employer.” As of the date of this post, this includes:
- the state;
- a political subdivision;
- a board, commission, department, institution, school district, trust, or agent of the state or a political subdivision of the state; or
. . . wait for it . . .
- “a person employing 15 or more employees within the state for each working day in each of 20 calendar weeks or more in the current or preceding calendar year.”
An “employer” does not include:
- a religious organization, association, society, educational institution, or a religious leader “when that individual is acting in the capacity of a religious leader;”
- an affiliate, wholly owned subsidiary, or agency of any of the above religious entities; or
- “the Boy Scouts of America or its councils, chapters, or subsidiaries.”
As discussed below, the UADA prohibits certain discriminatory conduct outside of the direct employment context by employment agencies and labor organizations. In addition, and this is a big one, the UADA prohibits any person, from aiding, inciting, compelling, or coercing any act prohibited by the UADA; obstructing or preventing a person from complying with the UADA; or attempting, “either directly or indirectly,” to commit an act prohibited by the UADA.
What the UADA Forbids
Among other things, the UADA forbids discrimination (including harassment and other forms of discrimination) and retaliation by employers against otherwise qualified persons on the basis of any of the following:
- sex, pregnancy, childbirth, and pregnancy-related conditions,
- age (over 40),
- national origin,
- sexual orientation, or
- gender identity.
The UADA also prohibits employment agencies and labor organizations from discriminating for any of the above reasons in job referrals, placements, and membership. It further prohibits employers, employment agencies, and labor organizations from advertising, asking about, or otherwise communicating in manner that expresses a limitation, requirement, or discrimination based on any of the listed characteristics.
And, as mentioned above, the UADA prohibits any person from aiding, inciting, compelling, or coercing any act prohibited by the UADA; obstructing or preventing a person from complying with the UADA; or attempting, “either directly or indirectly,” to commit an act prohibited by the UADA. (This bears repeating.)
What the UADA Affirmatively Requires
The UADA includes more than just prohibitions. It also imposes affirmative obligations on employers to provide reasonable accommodations for an employee related to pregnancy, childbirth, breastfeeding, or related conditions if requested by the employee. The only exception to this is if the employer demonstrates that the accommodation would create an undue hardship on its operations. The UADA further requires employers to include in an employee handbook or to post in a conspicuous place written notice of an employee’s rights to reasonable accommodations for pregnancy, childbirth, breastfeeding, or related conditions.
In addition, the UADA requires employers to make reasonable accommodations to all employees in dress and grooming standards based on gender identity. It also requires employers to make reasonable accommodations in rules and policies that designate sex-specific facilities (including restrooms, showers, and dressing rooms) based on gender identity.
The UADA does not explicitly require employers to make reasonable accommodations to the religious practices of employees. But, it does provide employees a right to express 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 allowed in the workplace. The UADA provides an exception where the expression is in “direct conflict” with the “essential business-related interests” of employers.
Similarly, the UADA prohibits employers from discriminating (including harassing) or retaliating against employees or applicants based on “lawful expression or expressive activity” outside the workplace about the employees’ “religious, political, or personal convictions, including convictions about marriage, family, or sexuality.” As with expressive activity in the workplace, the UADA also provides an exception where this expressive activity is “in direct conflict with the essential business-related interests of the employer.”
What Is Not Discrimination
The UADA provides certain exceptions from its prohibitions. One such exception is for requirements based on a protected characteristic where the characteristics are bona fide job qualifications. For example, an acting company can limit its hiring for female roles to women.
The UADA also provides that it is not a discriminatory or prohibited employment practice for an employer to give preference in employment to any of the following persons:
- a spouse, child, son-in-law, or daughter in law;
- a person for whom the employer is or would be liable for financial support if the person were unemployed;
- a person to whom the employer furnished more than one-half of total financial support during the preceding six months; and
- a person whose education or training is substantially financed by the employer for two years or more.
The UADA further allows actions relating to age (except for failing to hire or termination) when observing the terms of a bona fide seniority system or employment benefit plan. Employers may also impose compulsory retirement for employees who are at least 65 and who were employed in bona fide executive or high policy-making positions for at least two years immediately before retirement if they are entitled to an immediate nonforfeitable retirement benefit of at least $44,000 per year.
The UADA provides an administrative remedy for violations of its provisions. Id. § 34A-5-107. This administrative remedy is the exclusive remedy under Utah law for conduct prohibited by the UADA.
A person aggrieved by a prohibited employment practice may file a charge of discrimination with the Antidiscrimination and Labor Division (UALD) of the Utah Labor Commission within 180 days after the practice occurred. The UADA requires the UALD to attempt a settlement by conference, conciliation, or persuasion. If this is unsuccessful, the UALD is required to investigate the charge and issue a determination and order based on its findings. A party who doesn’t like the result may request an evidentiary hearing before an administrative law judge in the Commission’s Adjudication Division. An order issued by the Adjudication Division may be appealed to the Commissioner or the Commission’s Appeals Board. An order of the Commission is, in turn, subject to judicial review. A charging party may withdraw from the process at any time before a final order is issued.
If the UALD, Adjudication Division, or Labor Commission (as applicable) finds that the UADA was violated, it may order “make whole” relief. This can include an order to cease a prohibited employment practice, reinstate an employee, and pay back wages, benefits, attorney fees, and costs. If the prohibited practice includes discrimination in compensation, the charging party may be awarded an additional amount equal to the back pay award unless the employer shows it acted in good faith and with reasonable grounds to believe it was not discriminating in compensation.
 As mentioned in a previous post, the Utah legislature is currently considering a bill that would broaden the definition of employer. It is unclear if this bill will be passed, either in its current form or a modified form. Even if it does not pass, however, similar bills likely will be introduced in the future. More importantly, regardless of whether a business falls in the statutory definition of “employer,” it is begging for trouble to discriminate against anyone in employment. Just don’t go there.
Check back next week for more Utah Employment Law FAQs.
Mark A. Wagner concentrates his practice in employment law, homeowners association law, and health care law, and serves as Chair of the firm’s Employment and Labor Practice Group.