Navigate Developing LGBT Laws that Impact the Workplace

By Scott M. Wich Jul 20, 2016
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A federal district court struck down​ a Mississippi law affecting lesbian, gay, bisexual and transgender individuals.

Human resource professionals, and particularly benefits administrators, have faced an evolution over recent years concerning the expansion of job protections and benefits to employees who are part of the lesbian, gay, bisexual and transgender (LGBT) community.

While the interpretation of federal law has seen an expansion of such rights, several states have introduced laws that seek to narrow its reach. A federal district court in Mississippi struck down a religion-based law that highlighted the ongoing tension between federal and some state laws.

At issue was H.B. 1523, the Protecting Freedom of Conscience from Government Discrimination Act, which granted special rights to citizens of Mississippi who held certain beliefs. It applied to citizens who had one of three "sincerely held religious beliefs or moral convictions" that reflected disapproval of lesbian, gay, transgender or unmarried persons. The act gave special protection to citizens who believed that:

  • Marriage should be recognized as a union of one man and one woman.
  • Sexual relations are properly reserved to such a marriage.
  • The words "male" and "female" refer to an individual's immutable biological sex as determined by genetics at the time of birth.

H.B. 1523, which was to take effect July 1, 2016, was passed in direct response to the 2015 decision of the U.S. Supreme Court in Obergefell v. Hodges regarding the recognition of same-sex marriage. It provided that the state of Mississippi, defined to include private persons, corporations and other legal entities, would not discriminate against and would not find in violation of the law those who acted on the religious beliefs or moral convictions, as defined by the act, including in matters of employment. The law, broadly written, also applied to matters such as businesses providing (or refusing to provide) goods or services to LGBT customers and the issuance (or refusal of issuance) of marriage licenses.

Prior to the effective date of the law, a group of clergy, citizens targeted by H.B. 1523 and others who did not hold the beliefs that H.B. 1523 sought to protect, brought a lawsuit in the federal court of Mississippi seeking, among other things, an injunction to prevent its implementation. The defendants in the lawsuit included Mississippi Governor Phil Bryant and Attorney General Jim Hood in their official capacities. The attorney general's office defended the case on behalf of the state.

The district court found that H.B. 1523 was unlawful. It held that, under the U.S. Constitution's Equal Protection Clause of the 14th Amendment, the law denied equal protection to LGBT citizens by allowing Mississippians to refuse to serve LGBT citizens without consequence. It also held H.B. 1523 to be unlawful under the U.S. Constitution's First Amendment Establishment clause, which prohibits any law respecting the establishment of a religion or prohibiting the free exercise thereof. The court concluded that H.B. 1523 impermissibly established an official preference for certain religious beliefs above others. Therefore, the court concluded, an injunction was proper.

An appeal of the injunction has been filed with the 5th U.S. Circuit Court of Appeals by Bryant. Hood has stated that his office will no longer continue to defend H.B. 1523. As such, the appeal is being handled by the governor's private attorneys.

Barber v. Bryant, S.D. Miss., Nos. 3:16-CV-417 and 3:16-CV-442 (June 30, 2016).

Professional Pointer: As was also seen in the recent news concerning North Carolina's "bathroom law," individual states continue to challenge the reach of federal legal rights for LGBT individuals, such as the recent right to marry. Employers are well-advised to follow the evolution of such state laws. In addition to resulting in business boycotts, these state efforts may have negative impacts on employee recruitment and retention.

Scott M. Wich is a partner with the law firm of Clifton Budd & DeMaria.

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