With righteous indignation and maniacal glee, shortly after the passage of President Obama’s Affordable Care Act, an Obama-adverse relative of mine described how his boss, at a failing business, implemented a mass layoff. This boss talked to his supervisors about his employees’ political persuasions and then he walked into the company parking lot. Anyone displaying Obama bumper stickers, or had even voiced support for him, were laid off.
A lot has happened in dramatic fashion since that day. Gay marriage, under the banner of equal rights, is the law of the land. In Utah, pursuant to amendments to Utah Code § 34A-5-106, Utah state government and its agencies, most landlords, and employers with 15 or more employees, are prohibited from discriminating against the LGBT community.
Fearing a backlash of discrimination against those who expressed religious, political or other opinions that were inimical to this cultural seismic shift, the Utah Legislature promulgated legal quid pro quo to Utah’s conservative community by passing Utah Code § 34A-5-112. This legislation prohibits employers from discriminating or retaliating against employees who “express . . . religious or moralbeliefs 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.
This code further prohibits employer discrimination and retaliation against employees who engage in the “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.”
Based upon my experience as a lawyer, I believe that this legislation will prove to be very ironic in the next decade. As a native Utahn who grew up in the LDS community and privy to many conversations about the predominate culture’s philosophies,historical perspectives, and whims, I opine that a large percentage of Utahns will perpetuate a historically ingrained disposition of recalcitrance and quiet rebellion against the new paradigm and the laws that were passed to assuage them. As the saying goes, be careful what you wish for because you just may get it.
Through the passage of Utah Code § 34A-5-112, Utah legislators have
bequeathed to Utah’s masses a law that would have allowed the laid-off of Obama supporters to sue for damages and restoration of their jobs. Lest we get too smug, I hasten to add that, given what human nature is, I recognize that business owners on the left, and even members of the LGBT community, have acted with the same sense of impropriety against conservatives, LDS, and Republicans. Still, I suspect that the majority of successful litigants under this new law will be those who express opinions championing the rights and philosophies of the LGBT, liberal, libertarian, Democratic communities, or beliefs that run counter to Utah’s LDS constituency. I further suspect that despite this new law, many Utah businesses and governmental bodies will continue, although in a more sub rosa manner, to unabashedly discriminate against the LGBT community.
Litigation is often inefficient and imperfect. Even when it is successful, it does not always fully rectify the wrong. This is especially the case in Utah, since the same people who oppose gay marriage, and have a tradition of recalcitrance against such unpopular laws, will sometimes be selected or appointed as judges and jurors on these cases. Nevertheless, it is now possible to seek redress against such despicable practices.
In summary, when you learn that you are the victim of discrimination or retaliation, gather your evidence and take advantage of these new laws that have been created to protect you.
© Loren M. Lambert, 2015