- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
What's going on in BismarckBy: Paul Ebeltoft
In the past two articles, I have talked about what the national election might mean for HR professionals. In this, I will address some of what is going in in the North Dakota legislative assembly.
The legislature addresses sexual orientation and gender-identification.
Second to tax measures, Senate Bill No. 2252 has generated the most press. If passed, it will amend North Dakota’s Human Right’s law to make discrimination because of one’s sexual orientation unlawful. If passed, the policy statement of our core law, will read:
It is the policy of this state to prohibit discrimination on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, sexual orientation, status with regard to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer; to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions; and to deter those who aid, abet, or induce discrimination or coerce others to discriminate.
Also amended will be laws relating to issuance of health, auto, property and life insurance and jury duty, if Senate Bill No. 2252 passes.
To who would this new law, if enacted, apply? By definition, it will protect the lesbian, gay, bisexual, and transgender (LGBT) community as well as heterosexuals. It will prohibit discrimination for gender identity-related appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual's designated gender at birth. In other words, it protects everyone from discriminatory practices simply because they are or are merely perceived to have a particular sexual orientation or characteristic.
What are the chances?
Senate Bill No. 2252 is sponsored by Senators John Warner, D-Ryder and Mac Schneider, D-Grand Forks. Joining them are Representatives Kylie Oversen, D-Grand Forks, Rick Becker, R-Bismarck, Josh Boschee, D-Fargo, and Nancy Johnson, R-Dickinson. Four years ago, a similar bill passed the Senate but failed in the House of Representatives.
This year, backers are more confident. Not only do they have bi-partisan support but influential forces are gathering to promote its passage. On January 23, 2013, the Fargo Forum’s Editorial Board joined church and lay leaders in support of the bill, saying:
The bill merely brings state law up to a general national standard, and that standard has been defined and redefined by a steady march through U.S. history of extending to more Americans the constitutional promise of inalienable rights. North Dakota has an opportunity to more fully fulfill that promise.
It is hard to identify the national standard. There has been no direct federal legislative action mirroring that contemplated by Senate Bill No. 2252, but since 1995, by executive order, the federal government may not infer anything about sexual orientation when considering suitability for employment. Since 2010, again by executive order, the EEOC has included gender identity as among its list of protected classes. Last year, the United States military services announced open gay, lesbian and bisexual neutrality by eliminating the “Don’t ask – Don’t tell” rule.
Setting the national standard by counting the states recognizing LGBT rights is also difficult because of the many aspects of the life that that establishing LGBT rights may implicate. These range, for example, from same-sex marriage to designation of gender on birth certificates (neither of which are involved in Senate Bill No. 2252, although North Dakota allows changes of the latter). Some sources say that 21 states have already enacted bans on sexual orientation and/or sexual identity discrimination in the workplace.
What does this mean for HR professionals?
The easy answer is “Nothing, probably, unless the bill passes.” However, that answer misses the point. It is becoming self-evident that the hiring practices of competitors, not the law, are effective tools to shape other company’s hiring biases. The Fargo Forum reports that major North Dakota employers such as Microsoft, Sanford Health, Blue Cross Blue Shield, Forum Communications, the North Dakota University System, the Department of Transportation and the Department of Health already affirmatively adopt sexual orientation and/or sexual identity neutrality in hiring. These North Dakota-based employers are but a few of many. As measured by the Human Rights Campaign through its Corporate Equality Index, 337 large national companies received a 100% rating. Some of these are now active in the North Dakota oil boom. In other words, if your company has not leveled its hiring hurdles on sexual orientation or identity, a portion of your job pool roughly equal to the population of the State of New Jersey, may be absorbed by those who have.
But, the march of history does not render North Dakota’s pending legislation meaningless. Often public and private efforts to end discrimination will not create any enforcement rights. The enactment of a state law will provide enforcement tools. Passage will also affect your work-life, if not your actual hiring practices, which likely are fair and open now. Passage will require retooling your current policies to include appropriate statements. Passage will require added education and training of your employees and supervisors, and perhaps more importantly, your company owners.
By the time this hits your inboxes, both the North Dakota Senate and the House will have held hearings on the measure. There has been no legislative action take yet, in committee or on the floor. Watch for developments and contact your legislators to make your views known.
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I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Reprinted with permission from an article submitted for publication in the February, 2013 Southwest Area Human Resource Association newsletter.