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Feb 04, 2013

What's going on in Bismarck

By: 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.

Our interest in serving you

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@eskgb.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)


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.