Chris Herrod on: Not being able to fire people because Anti-Discrimination is wrong.

Regardless of how one feels about SB 296, Anti-discrimination and Religious Freedom Amendments, the law has passed … now it’s time to look at the consequences.  The practical effect of Utah’s new law is quite far reaching and possibly fairly costly. Until other states adopt similar measures, Utah will most likely be put at a competitive disadvantage. Here’s why:

Utah has traditionally been a state with fairly strong “at will” protections.  “At will employment” means that one can be fired without cause for any reason … except for traditionally the big six – race, national origin, religion, gender, age, disability … now add sexual orientation and gender identity. To the surprise of many, one can be fired for any other reason … liking the wrong color, the wrong football team, or the boss simply had a bad day.

The rationale behind “at will” status is that employment relations are voluntary which are protected by rights of association and the protection of the property rights of business owners … i.e. how to use their property/assets in the way they best see fit etc. “At will” employment also cuts back dramatically on paperwork which reduces costs!

Since companies have traditionally just had to worry about minorities or the other protected categories in the big six, the documentation for everyone else has been minimal.  Most companies won’t admit it … as extra documentation could be seen as discriminatory in and of itself … but companies more carefully document minorities and other protected categories … talk in private to any HR manager who doesn’t want successful lawsuits against them and they will admit that this is the case.

This additional documentation protects the company against unwarranted lawsuits … if a protected individual is fired, the individual could always pull the protected category card … I’m being fired because I’m too old etc., and then the burden of proof is on the company to prove otherwise.  While most minorities or individuals don’t pull this card, the documentation is needed because a single accusation can ruin a company or wreak havoc on public relations.

Obviously, pulling the protected category card isn’t effective if one is White and White is the majority.  With the number of women working basically on parity with men, the gender card isn’t see as a big as threat as it used to.  Utah is still fairly homogeneous compared to other states and so our HR costs relatively less in comparison to other states … this has long been a competitive advantage of Utah.

For the most part, it’s fairly obvious if an employee was in the big six … this was precisely the reason it was illegal … but this also meant that a company could know that it was prudent to have extra documentation before firing them.  Now, with SB 296 in place, almost everyone has to be assumed to be in the protected category since the characteristic protected is not obvious … one does not check the “I’m gay” or “I’m religious” on the employment application … this being illegal.   A company may very well find out for the first time that someone is gay or that someone has been offended religiously when they fire them. At that point, it’s too late to document anything.

A wise company will now recognize that in all practical effect, Utah is no longer an “at will” state and start documenting every action by everyone that could possibly be grounds for termination or when layoffs are needed.

I think I might brush up on my HR skills and apply for a job in Utah’ newest fastest growing sector.