EEO - Discrimination: Utah
Federal law and guidance on this subject should be reviewed together with this section.
Author: Kass Harstad, Strindberg and Scholnick, LLC
- Utah's Antidiscrimination Act (UADA) prohibits discrimination on the basis of certain protected classes, including pregnancy, childbirth and pregnancy-related conditions. See Discrimination Under the Utah Antidiscrimination Act.
- Certain employers, such as religious organizations, are not covered under UADA, whereas others like labor organizations and employment agencies are covered employers. See Covered Employers.
- Utah not only prohibits discriminatory acts by an employer during employment, it also prohibits employers from advertising, interviewing or conducting training in a discriminatory manner. See Prohibited Practices.
- UADA also recognizes that it is not a discriminatory employment practice for an employer to hire employees on the basis of certain protected classes where the protected status is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer's business. See Defenses.
- UADA has specific guidelines regarding mandatory retirement, but allows employers to observe certain seniority systems without breaking the law. See Age Discrimination.
- Utah employers should take steps to provide reasonable accommodations to employees and applicants. See Disability Discrimination.
- The Utah Antidiscrimination and Labor Division (UALD) of the Utah Labor Commission is responsible for enforcing the UADA. See Enforcement by Utah Antidiscrimination and Labor Division.
- An employee may not bring a claim of discrimination in court until and unless she has gone through the UALD, and the UALD has strict deadlines that an individual must meet before bringing a claim of discrimination. Additionally, the UALD attempts to mediate any claims of discrimination before it conducts any investigations into the claims. See Enforcement by Utah Antidiscrimination and Labor Division.
- Utah law has certain recordkeeping obligations that require employers to preserve employment records for six months or longer depending on the status of an employer's relationship with an employee. See Recordkeeping.
Discrimination Under the Utah Antidiscrimination Act
The Utah Antidiscrimination Act (UADA) is the Utah counterpart to federal laws that prohibit discrimination against employees and applicants.
Under Utah law, an employer may not refuse to hire, promote, discharge, demote, or terminate any person, or to retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified on the basis of race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, age (if the individual is 40 or older), religion, national origin (including ancestry), sexual orientation, gender identity or disability, as defined by the Americans with Disabilities Act. +Utah Code Ann. § 34A-5-101.
A person may not be considered otherwise qualified unless that person possesses the following required by an employer for any particular job or classification, or position: education, training, ability (with or without reasonable accommodation), moral character, integrity, disposition to work, adherence to reasonable rules and regulations and other job related qualifications required by an employer.
The UADA trumps any local law prohibiting employment discrimination including protections under the Salt Lake City ordinance. +U.C.A. §34A-5-102.5.
The following are considered employers under the Utah Antidiscrimination Act:
- State or other governmental entities, like a city or county, regardless of the number of employees;
- Private employers with 15 or more employees within the state; and
- Labor organizations, employment agencies and vocational schools, regardless of the number of employees.
The following entities are not covered by the Utah Antidiscrimination Act:
- Religious organizations or associations, religious corporations, or wholly owned subsidiaries of such organizations, no matter how many employees they have; and
- Any business on or near an Indian reservation giving preferential treatment to Native American Indians living on or near that Indian reservation.
Under UADA, an employer may not refuse to hire, promote, discharge, demote or terminate any person because that person is a member of a protected class. Similarly, employment agencies may not provide an employer with applicants, if the request by that employer indicates that the employer discriminates against those in protected classes.
Labor organizations may not exclude any individual from full membership, expel or otherwise discriminate against any member in employment opportunities or representation because that member is part of a protected class.
Employers may not discriminate in compensation, or in terms, privileges and conditions of employment, because a person is in a protected class.
An employer, employment agency, or labor organization may not print or circulate any advertisement, use any application form, or make any inquiry in connection with prospective employment or membership that expresses any limitation as to protected classes.
UADA also applies to on-the-job training offered by employers, labor organizations or vocational schools. Specifically, an individual may not be denied training or apprenticeship because he or she is a member of a protected class.
Utah does not have a separate equal pay statute and the equal pay provisions are part of the UADA.
The UADA bans wage discrimination and prohibits an employer with 15 or more employees from discriminating in matters of compensation based on a protected classification and paying differing wages or salaries to employees having substantially equal experience, responsibilities, and skill for the particular job. +Utah Code Ann. § 34A-5-102; +Utah Code Ann. § 34A-5-102; +Utah Code Ann. § 34A-5-106. Protected classifications include sex, race, color, pregnancy, childbirth, or pregnancy-related conditions, age (40 or older), religion, national origin, disability, sexual orientation, or gender identity.
The law does not prohibit an increase in pay based on longevity with the employer, if the salary increase is uniformly applied and available to all employees on a substantially proportional basis; or an agreement between an employer and employee for a rate of pay or work schedule designed to protect the employee from loss of Social Security payment or benefits if the employee is eligible for those payments. +Utah Code Ann. § 34A-5-106.
Bona Fide Occupational Qualification (BFOQ)
It is not a discriminatory employment practice for an employer to hire employees on the basis of religion, sex, age, national origin, disability, pregnancy, childbirth or pregnancy-related conditions in those instances where the protected status is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer's business.
For example, a restaurant may be permitted to hire exclusively female waitresses, if its identity is based on its female waitresses and it would be detrimental to its business if it were forced to hire male waiters.
It is also not discriminatory for an employer to give preference in employment to his or her family members.
Utah law is silent regarding whether an employee or supervisor may be held personally liable for discrimination, but it is highly doubtful. An individual supervisor cannot be held personally liable under Title VII, and Utah looks to Title VII when interpreting UADA.
Utah law is silent on this issue, and as such, Utah law follows the standards for employer liability under Title VII.
An employee's only recourse for discrimination under UADA is to file a Charge of Discrimination with the UALD. See Enforcement by Utah Antidiscrimination and Labor Division. The charge must be filed within 180 days of the discrimination. A discrimination complaint can be filed at the Equal Employment Opportunity Commission (EEOC) (or federal level) within 300 days of the discrimination.
Generally, an employee may not be fired or forced to retire on the basis of age alone, with very limited exceptions.
However, an employee may be forced to retire based on his or her age if age is a BFOQ. Utah courts have not examined when age may appropriately be considered a BFOQ. However, federal courts have held that, for age to be a BFOQ, an employer must demonstrate that it is compelled to rely on age as proxy for safety related job qualifications because:
- There is a factual basis for believing that all (or substantially all) persons over a certain age would be unable to perform the duties of the job; or
- It would be impossible or highly impractical to insure by individual testing that its employees would have necessary qualifications.
Common examples given include pilots, bus drivers or people with physically demanding jobs.
Other exceptions include:
- Attorneys who have career service status and are employed by the Utah Attorney General shall retire upon turning 70 years old (but they may be retained thereafter as special assistant attorneys general); and
- An employer may compel the retirement of any employees who is at least 65 years old and has been in an executive position for two years immediately before retirement, so long as the employee receives an immediate, non-forfeitable annual retirement benefit from the employer's pension, profit-sharing, savings or deferred compensation plan (or any combination thereof), so long as the benefit equals at least $44,000 in the aggregate.
It is not age discrimination under UADA to use a seniority system or any employment benefit plan like a retirement plan.
Similarly, an employer can increase its employees' pay using longevity with an employer, if those increases are uniformly and equally applied to all employees.
Under Utah law, an employer may not discriminate against an individual that has a disability which is defined as:
- Physical or mental disorders or conditions that substantially limit a major life activity;
- Physical or mental disorders or conditions that are defined as disabilities by the federal Americans with Disabilities Act;
- A known history or record of mental or physical disability;
- Being regarded as having or having had a mental or physical disability; or
- Having a mental or physical disability that substantially limits a major life activity only as a result of the attitudes of others.
Under UADA, an employer may not discriminate against an employee or applicant with physical or mental disabilities if the individual possesses the education, training, ability, moral character, or other legitimate qualifications for the positions sought or held and who can perform essential job duties with or without reasonable accommodation, unless justified by a bona fide occupational qualification.
Employers are not required to grant preferential treatment on the basis of disability to correct workforce imbalances.
When an individual requests that an employer provide an accommodation on account of disability, an employer should identify a reasonable accommodation which will enable that individual to perform essential job functions.
Employers are not required to provide accommodations that would cause undue hardship. In such a situation, an employer should aim to provide an alternative accommodation that will not cause the employer undue hardship.
Under the Genetic Testing Privacy Act, a Utah employer may not use genetic tests or private genetic information for discriminatory purposes. An employer also may not request or require employees or applicants to provide or consent to release private genetic information for purposes of hiring, promotion, retention or other related employment decisions. +Utah Code Ann. § 26-45-102; +Utah Code Ann. § 34A-2-103; +Utah Code Ann. § 34A-11-102.
The Utah law regarding genetic testing applies to private employers and independent contractors with one or more employees, including employees under contracts of hire, and public employers are covered by the genetic information bias provisions. Domestic employers that do not employ one or more employees at least 40 hours per week are exempt.
Genetic Tests Defined
Genetic tests are tests or analyses of DNA that reveal information from the presence, absence, alteration, or mutation of genetic material. This definition does not include routine physical exams, routine chemical, blood, or urine analyses, HIV or drug tests, or tests performed because of signs, symptoms, or other manifestations of disease, illness, impairment, or disorder.
Employers can compel the disclosure of private genetic information by employees, applicants or third parties if such individuals have placed their health at issue or the employer has a reasonable belief that the individual's health conditions create a health and safety risk for the employer.
Discrimination Based on Sexual Orientation and Gender Identity and Lawful Expressive Activity
Effective May 12, 2015, under the Utah Antidiscrimination and Religious Freedom Act, Utah bans discrimination and harassment against lesbians, gays, bisexuals and transgender individuals. It is illegal under Utah law to base an employment decision on an individual's sexual orientation or gender identity or expression. However, an employer is not prohibited from adopting reasonable dress and grooming standards or from adopting reasonable rules designating sex-specific facilities, as long as the employer's rules provide reasonable accommodations based upon an individual's gender indention. Religious organizations as well as affiliated universities and corporations are except from this law. Further, the law protects an employee seeking to express his or her religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar expression of beliefs or commitments permitted by employers in the workplace. The law also prohibits an employer from taking any adverse actions against employees for lawful expression outside the workplace regarding religious, political, or personal convictions.
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.
Armed Forces Discrimination
Any employer is prohibited from discriminating against an employee or applicant based on military reserve membership. +Utah Code Ann. § 39-1-36.
A private employer in Utah may create a veterans preference employment policy though it is not required to do so. +Utah Code Ann. § 34-50-103. See Recruiting: Utah. An employer should be careful in applying any veterans preference policy that the policy does not have an adverse impact on any other protected class.
Under the Utah Antidiscrimination Act, Utah employers are required to provide reasonable accommodations to employees affected by pregnancy, childbirth, breastfeeding or related conditions unless it would create an undue hardship for the employer. An employer also may not terminate an employee if another reasonable accommodation may be provided or deny employment opportunities based on the need for a reasonable accommodation. An undue hardship is defined as an action requiring significant difficulty or expense when evaluating factors such as the size of the entity, the entity's financial resources, and the nature and structure of the entity's operation. An employer may require the employee to provide certification from the employee's health care provider regarding the medical advisability of a reasonable accommodation, but may not require certification to permit the employee to obtain more frequent restroom, food or water breaks. An employer is required to provide written notice of an employee's rights to reasonable accommodations based on pregnancy, childbirth, breastfeeding or related medical conditions in an employee handbook or post notice in a conspicuous place at the employer's place of business.
Lactation/Breastfeeding Protections and Accommodations
Utah law prohibits counties from prohibiting a woman from breastfeeding in any location where she otherwise may rightfully be. +Utah Code Ann. § 17-15-25.
Further, the Breastfeeding Protection Act amends the public accommodations law to prohibit discrimination based on pregnancy (including pregnancy related conditions such as breastfeeding, lactation and medical conditions related to breastfeeding) and provides that a woman may breastfeed in any place of public accommodation.+2018 Bill Text UT H.B. 196; +Utah Code Ann. § 13-7-3.
The UADA prohibits an employer from discriminating against an employee because the employee is breastfeeding or has a medical condition related to breastfeeding. An employer is also required to provide a reasonable accommodation to an employee related to breastfeeding if the employee requests such an accommodation and unless doing so would represent an undue hardship to the employer's business operations. An employer is not required to permit an employee to have the employee's child at the workplace for purposes of accommodating breastfeeding or related conditions. +Utah Code Ann. § 34A-5-102; +Utah Code Ann. § 34A-5-106.
An employer is required to provide written notice of an employee's rights to reasonable accommodations based on pregnancy, childbirth, breastfeeding or related medical conditions in an employee handbook or post notice in a conspicuous place at the employer's place of business.
Under the Utah Medical Cannabis Act (the Act), individuals over the age of 18 who are qualified registered users with a qualifying condition are allowed to use medical marijuana. The law may be superseded or modified by legislative amendments.
A qualifying condition includes conditions such as:
- HIV or AIDS;
- Alzheimer's disease;
- Crohn's disease or ulcerative colitis;
- Multiple sclerosis or persistent and debilitating muscle spasms;
- Post-traumatic stress disorder;
- Autism; and
- Pain lasting longer than two weeks that is not adequately managed, in the qualified medical provider's opinion, despite treatment attempts using conventional medications other than opioids or opiates or physical interventions.
Utah Code § 26-60a-104.
Under the Act, an individual may not:
- Smoke cannabis or use a device to the facilitate the smoking of cannabis; and
- Ingest cannabis or a cannabis product while operating a motor vehicle.
The law does not require an employer to pay or reimburse for cannabis, a cannabis product or a medical cannabis device. Utah Code § 26-61a-112. In addition, an employer is not required to accommodate or permit marijuana use in the workplace. Therefore, an employer may implement and enforce a policy against employees using or being under the influence of marijuana in the workplace.
The state Department of Health must begin issuing cards to qualified individuals or their designated caregivers no later than March 1, 2020, and within 15 days after eligible applications are received.
While the federal Americans with Disabilities Act does protect individuals who are former or recovering drug addicts from discrimination by employers, employers are permitted to take an adverse action (e.g., discipline or termination) against employees based on current illegal drug use. Therefore, an individual who currently abuses a drug that is illegal under federal law (like marijuana) is not considered to be an individual with a disability under the ADA.
Enforcement by Utah Antidiscrimination and Labor Division.
Utah Antidiscrimination and Labor Division
The Utah Antidiscrimination and Labor Division (UALD) of the Utah Labor Commission enforces the UADA. It is tasked with receiving employment discrimination complaints, conducting mediations for the parties (for early resolution), investigating the complaint, and resolving the complaint by making a determination of whether or not illegal discrimination occurred and ordering restitution, if any.
Charge of Discrimination
Any person claiming discrimination may file an Intake Form outlining the details of the discrimination and a notarized Charge of Discrimination with the UALD within 180 days after the alleged discriminatory act. Although the Charge should be filed within that time frame, the UALD now accepts a Charge as timely if the Intake Form is received within the 180 days.
Upon receiving the Intake and Charge, UALD conducts an initial review of the case to determine if the Charge contains allegations of discrimination against an employer of sufficient size and over actions which are violations of UADA. If UALD accepts the Charge it first tries to settle the Charge through mediation, and if the mediation is unsuccessful, the UALD assigns an investigator to conduct an investigation. After the investigation is complete (typically, a process of a year to two years), his or her findings go to UALD's director, who issues a Determination and Order. If the director finds no cause (e.g., that there was no illegal discrimination), the director issues a Determination and Order for dismissal. If the director finds cause (e.g., that there was discrimination), the director issues Determination and Order directing the employer to cease any discriminatory practices and providing the employee (e.g., the Charging Party) with whatever the director feels is appropriate based on the damages that UADA allows. Either party may, within 30 days of receiving a Determination and Order, file a written request for a hearing where witnesses are called and documents are presented, much like a trial. In this evidentiary hearing, the Determination and Order may be introduced but it is not supposed to have any effect on the outcome. If no such written request is received within that 30-day period, the Determination and Order becomes final.
If a party requests an evidentiary hearing, an Administrative Law Judge (ALJ) is assigned to preside over the hearing. Prior to the hearing, the parties are allowed to conduct written discovery, take depositions and file motions to get rid of the case or certain issues before the hearing. As part of the discovery, either party may obtain the investigator's files. However, any notes taken during mediation are confidential and are not produced. Finally, throughout the proceedings, the Utah Rules of Evidence and Civil Procedure are used as guidelines, but they are not strictly followed.
If, as a result of a motion or an evidentiary hearing, the ALJ determines that there was no discrimination, the ALJ may award the employer's attorneys' fees and costs if the ALJ determination that the discrimination action was frivolous. However, if the ALJ determines that there was discrimination, the ALJ may order the employer to cease any discriminatory practices and may also order damages, including reinstatement, back pay and benefits, attorneys' fees and costs. Front pay may be awarded instead of reinstatement. The UALD does not award punitive or emotional distress damages, like an employee can get under the federal antidiscrimination laws.
Finally, either party may file a written request for review before the Utah Labor Commission's Appeals Board. If there is no timely request for review, the Order issued by the ALJ becomes the final order of the UALD. The UALD (or the Utah Attorney General at the request of the UALD) may commence an action for civil enforcement of a final Order against an employer.
Equal Employment Opportunity Commission and the UALD
The UALD has a work-share agreement with the EEOC, and as such, it may transfer an Intake and Charge to the EEOC if it deems it appropriate. For example, because the EEOC allows Charges of Discrimination to be filed within 300 days (as opposed to 180 days), any Charges of Discrimination that relate to acts that occurred more than 180 days prior to filing will be transferred to the EEOC.
Additionally, at any time before an Order becomes Final, the Charging Party may withdraw his or her Charge from the UALD and request a Notice of Right to Sue from the EEOC. This request bars the commencement or continuation of any action at the UALD. The Charging Party has 90 days after receiving the Notice of Right to Sue to file a Complaint in federal court.
Under UADA, an employee's only recourse is through the above procedure. So, an employee cannot bring a discrimination claim in any court, either state or federal. Practically, this does not preclude an employee from prematurely withdrawing his/her charge of discrimination and filing a lawsuit in federal court. This is because an employee can request a Notice of Right to Sue from the EEOC and proceed in federal court under a similar federal antidiscrimination law (Title VII). Once an employee receives a Notice of Right to Sue, he or she must file suit within 90 days. However, UADA is the only remedy available for state employees alleging age discrimination (where the state entity does not accept any federal funding).
Remedies and Damages
If the Utah Labor Commission determines that an employee has been retaliated against, the Commission can provide relief to the employee, including:
- Back pay and benefits;
- Attorneys' fees; and
Punitive and/or emotional distress damages may not be awarded under UADA. See +Utah Code Ann. § 34A-5-107.
Under an amendment to the Utah Antidiscrimination Act, the amount of damages available is increased as a complainant may be awarded back pay and benefits as a remedy for compensation discrimination claims. An employer may avoid these additional damages award by demonstrating that it acted in good faith and had reason to believe its actions were not discriminatory.
Employers who submit Standard Form 100, Employer Information EEO-1 Reports to the EEOC are not required to furnish duplicative information to the UALD. However, the UALD reserves the right to require reports about employment practices when such information has not been furnished to the EEOC.
Employers have to preserve employment records (including application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship) for six months from the date of the making of the record and the personnel action involved, whichever occurs later.
An employer that has been charged with discrimination under the Act must keep all personnel records concerning the incident(s) that the complaint is based on and that concern the complaining employee until the complaint is over.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.