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Employment lawyers warn of HB 1523’s workplace pitfalls

By TED CARTER

Legal traps are ahead for private employers who impose their religious beliefs in the workplace once Mississippi’s new religiously focused “Freedom of Conscience” law goes into effect July 1, warn employment law attorneys Jaklyn Wrigley and Steve Cupp of the Gulfport office of Fisher & Phillips.

The measure set to go into effect July 1 is touted as providing circuit court clerks, churches, faith-based organizations and private businesses state protections in refusing service to gay people and others based on religious beliefs or moral convictions. In the workplace, the law is interpreted by supporters to let employers mandate that transgender individuals, even ones who have undergone sex change procedures, use the workplace restroom that corresponds to their sex at birth.

» READ MORE: Muddy and weak, clear and strong — Consensus on HB 1523 is very elusive

The pending law also purports to allow private employers to establish sex-specific standards or policies on employee dress or grooming based on “sincerely held religious beliefs.”

The same sincerely held beliefs are also purported to protect public-sector workers who speak or engage in religiously expressive conduct.

But from the perspective of federal civil rights protections, discrimination is discrimination regardless of how the Mississippi Legislature phrases the law, according to Wrigley and Cupp, whose practice represents employers solely.

The shield employers may think the state has provided is likely to prove thin, at best, they say.

“It may lull employers into a false sense of security,” said Wrigley of House Bill 1523, the so-called religious liberty measure set to go into effect July 1.

“It is very dangerous… to make employment decisions based on your religious beliefs,” she said.

Employers can go into a judicial or administrative hearing armed with HB 1523. But as a defense, “it won’t be very strong because of federal law trumping HB 1523,” Wrigley added.

In a “legal alert” Fisher & Phillips issued a couple of days after Gov. Phil Bryant’s signing of HB 1523 on April 5, the employment-law firm emphasized that while Mississippi has “very few” laws on employment relationships, the federal government has numerous laws and regulations that do.

Here’s a portion of the specific advice the legal alert gave:

“If you take action against employees because of their sexual orientation or gender identity, or because of an employee’s out-of-wedlock pregnancy, or if you mandate restrooms based on one’s autonomy at birth, or make hiring decisions based on your religious tenants, it is not the State of Mississippi you should be worried about.”

Worry instead about the federal government’s Title VII protections, OSHA, Executive Orders and statutory and regulatory provisions, the alert warned.

All of these federal laws, rules and agencies can “make you regret making a decision in reliance on Mississippi law,” Fisher & Phillips said.

Title VII applies to businesses with 15 or more employees and prohibits discrimination on the basis of a worker’s sex, among other things. The regulation also applies to government workplaces.

“Over the years, courts and the EEOC (Equal Employment Opportunity Commission) have interpreted the term ‘sex’ to mean gender identity and to include any type of bias based on sex,” the alert noted.

In other words, protections have been extended to transgender individuals.

Hence, basing employment or workplace decisions  on a person’s sexual orientation or gender “can place you in the EEOC’s crosshairs, even if you are motivated by a sincerely held religious belief,” it added.

In a further warning to Mississippi employers who mandate bathroom use based on anatomy at birth, Fisher & Phillips warned OSHA may assess fines against you for creating conditions that lead to health and safety problems, or otherwise make your employees feel unsafe.

On the workplace restroom issue, Fisher & Phillips’ Wrigley and Cupp say they understand that female workers may not want to share a bathroom, with a person who identifies as a woman but who has a male anatomy. “I think it’s going to involve a lot of conversation on what is a best fit for that employer,” Wrigley said, advising employers should try to implement “a protocol.”

Wrigley and Cupp say they think the U.S. Supreme Court will ultimately have to rule on the bathroom-use issue and other matters pertaining to religion in the workplace. But for now, they believe that on the bathroom issue, the EEOC and OSHA are going to rule on the side of the transgender person.

The Fisher & Phillips legal alert also cautions that public-sector employers could find themselves in a quagmire. The trap is that HB 1523 seems to encourage on-the-job proselytizing while Title VII gives federal protections against unlawful workplace harassment, the firm said.

“Therefore, public employers may find themselves weighing the risk of disciplining or terminating an employee in violation of HB 1523 against the risk of creating a hostile work environment.”

A further trap in Mississippi law, the firm’s Cupp said, is a provision that allows “a cause of action” if someone in the workplace interferes with a worker who is trying to perform work duties.

And unlike Title VII, the state law has no threshold for number of employees in a workplace, according to Cupp.

“We see the potential for a lot of problems being created in the workplace.”

Cupp does not buy claims of HB 1523 supporters that the measure is limited to discrimination against employees in state government. “It is so broadly written that private employers could use this law to justify taking action,” he said.

A rule of thumb for employers and employees alike to apply, said Balch & Bingham employment law specialist Armin Moeller, is that “work is for work and not a time for proselytizing.”

His advice to both the boss and to workers: Either tone it down or limit the content and time and place. “The person who wants to proselytize their view can do so, for example, on their lunch hour, as long as other employees don’t complain,” said Moeller, a partner in the Jackson office of his firm’s Labor & Employment Section.

In a final bit of advice, Fisher & Phillips suggests Mississippi employers think twice about relying on HB 1523 and its religious focus to make employment decisions. Employers must evaluate whether their decision will result in recourse, the firm said, and added: “There is a good chance it will.”

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