On December 4, 2012, the Boise City Council passed an anti-discrimination law that prohibits discrimination on the basis of sexual orientation in employment and in other matters. Since then, I have had a flurry of questions about the new law and decided to post the basics here.
The provisions related to employment impose potential imprisonment and a fine for:
Denying “any other person because of sexual orientation and/or gender identity/expression the right to work:
(a) by failing or refusing to hire,
(b) by discharging,
(c) by barring from employment,
(d) by discriminating against such person in compensation or in other terms or conditions of employment, or
(e) otherwise discriminating against an individual with respect to employment.”
Similar to other anti-discrimination laws, retaliation for making a complaint, for opposing unlawful practices, and for participating in or assisting in an investigation, is also prohibited.
These employment prohibitions do not apply to religious corporations, associations, educational institutions or societies. They don’t apply to certain other associations if the protections would impose a significant burden, e.g., the Boy Scouts of America. Further, they don’t apply to the United States or Idaho State govermments, their agencies or political subdivisions, except the City of Boise.
Unlike most anti-discrimination laws with which employers are familiar, an employee cannot sue you for a violation of this ordinance and seek damages. Instead of a civil action, the law will be enforced under Boise’s police power and violations are considered a crime. Prison sentences of up to 6 months and fines of up to $1,000 can be imposed for violations of the Act.
So far, there have been no investigations under the new law, but it is only a matter of time, and Boise employers should be prepared.
What to do NOW:
- Update all of your equal employment policies and statements to include sexual orientation and gender identity or expression.
- Update your harassment policy to prohibit harassment and retaliation based on the new protected classes.
- Update any disciplinary policies that include lists of prohibited actions to include discrimination and retaliation.
- Train employees and managers regarding the new prohibitions, definitions, and policies.
On Monday, April 1, 2013, the Moscow City Council passed an ordinance similar to Boise’s, and the City of Pocatello is currently considering a related ordinance which is planned for public hearing this week. The problem with cities enacting employment legislation is the multitude of interpretations and employer obligations that will ensue. This is going to be a difficult mess for employers with multiple locations in Idaho as the trend continues.
If you have questions or concerns about this or other employment matters, please feel free to contact me.