Workplace discrimination protections stall

Lawmakers debated a bill March 23 that would protect employees from discrimination based on their sexual orientation and gender identity.

Introduced by Lincoln Sen. Adam Morfeld last session, LB586 would prohibit employers, employment agencies and labor unions from discriminating against individuals based on their sexual orientation or gender identity. The bill would apply to employers with 15 or more employees, employers with state contracts, the state of Nebraska, governmental agencies and political subdivisions.

Currently, the Nebraska Fair Employment Practice Act prohibits workplace discrimination based on race, color, religion, sex, disability, marital status and national origin.

Morfeld said workplace discrimination threatens Nebraska’s economic development by causing highly qualified lesbian, gay, bisexual and transgender (LGBT) employees to move to states where equal protection exists. Workers should be judged on their performance, not their lifestyles, he said.

“[LB586] is not only the right thing, it is also good for business and makes us more competitive when recruiting talent from across the country and the world,” Morfeld said. “No one should be fired for how their creator made them or who they love.”

The bill stalled during general file debate last session and the Legislature moved on to other bills on the agenda.

Morfeld said that he had taken note of concerns raised during last year’s debate and worked over the interim to find a compromise, represented in an amendment offered by Lincoln Sen. Colby Coash.

The amendment clarifies that nothing contained in the Nebraska Fair Employment Practice Act would affect the ability of an employer to take action against an employee if such action is otherwise allowed under local, state and federal law. Such actions would include those taken in response to an employee’s misconduct, incompetency, behavior, violation of workplace policy, neglect of duty, unprofessional conduct or insubordination.

The amendment also would remove the words “or perceived,” which would limit the bill’s definition of gender identity to actual appearance, identity or behavior of an individual whether or not those characteristics are different from an individual’s assigned sex at birth.

Coash said he was not convinced that workplace discrimination against the LGBT community is a pressing issue, or that the bill would be too onerous for businesses.

Instead, he said, the issue came down to the ability of employers to recruit and retain a quality workforce. He said that when businesses recruit, they not only are attempting to fill a specific position but also are recruiting for their community and their state.

“[Employers] are competing in a global economy,” Coash said. “They’re competing for a workforce that is changing, and they’re competing for a workforce that—for them—this protection is important.”

Morfeld said that a pending technical amendment introduced by the Judiciary Committee was designed only to emphasize that religious entities in Nebraska have been exempt from the state’s Fair Employment Practice Act since 1965. According to the statute, the act cannot apply to a religious corporation, association or society with respect to the employment of individuals of a particular religion.

Papillion Sen. Jim Smith opposed the bill and the amendments. He said any discrimination that may be occurring against LGBT Nebraskans is not extensive enough to justify the negative impact the bill could have on the state’s small business “job creators.”

Smith said that while the Lincoln and Omaha chambers of commerce supported the bill, those entities often do not reflect the interests of small businesses. Large employers have human resources departments and the ability to ensure that they do not violate state personnel regulations, he said.

“The majority of employers and employees are represented by small businesses in our state, yet their voice is rarely heard,” Smith said. “This [bill] is the type of legislation that is burdensome to small business and they will suffer.”

Morfeld said small businesses have nothing to fear from LB586 unless they engage in discriminatory practices. The burden of proof for any claim made under the bill’s provisions would be on the employee, he said, which would serve as a deterrent to unfounded discrimination claims.

“The bottom line is: don’t discriminate and you’re fine,” Morfeld said, “because there will not be any proof.”

Sen. Patty Pansing Brooks of Lincoln supported the bill and the amendment, agreeing that the state needs LGBT protections in the workplace in order to attract and retain talented individuals.

“Almost every LGBT person I have met has mentioned wanting to leave Nebraska because of the [lack of anti-discrimination] laws,” she said.

Omaha Sen. Bob Krist offered a motion to bracket the bill until April 20, saying the proposal had been debated sufficiently and lacked the support needed to move forward.

“I believe that LB586 had a fair and honest hearing last year and that there weren’t enough votes to take it to the finish line,” he said. “I still believe that it’s not the kind of legislation that we need to introduce; there’s no compelling reason for doing it.”

Morfeld opposed the bracket motion, saying the issue of LGBT rights would not disappear once senators stop discussing it.

“We can keep kicking this issue down the road, colleagues, but it’s not going away,” he said, adding that he would introduce similar legislation next year.

The bracket motion was adopted on a vote of 26-18.