Text of NE LB 120 (2022)

LEGISLATURE OF NEBRASKA ONE HUNDRED SEVENTH LEGISLATURE FIRST SESSION LEGISLATIVE BILL 120 Introduced by Hunt, 8; Blood, 3; Pansing Brooks, 28. Read first time January 07, 2021 Committee: A BILL FOR AN ACT relating to discrimination; to amend sections 18-1724, 1 23-2525, 23-2531, 23-2541, 29-401, 48-215, 48-1101, 48-1104, 2 48-1105, 48-1106, 48-1107, 48-1113, 48-1115, 48-1122, 48-1124, 3 49-801, 81-1355, and 81-1356, Reissue Revised Statutes of Nebraska, 4 and sections 48-628.13, 48-1111, 48-1117, and 48-1119, Revised 5 Statutes Cumulative Supplement, 2020; to prohibit discrimination 6 based upon sexual orientation and gender identity as prescribed; to 7 define terms; to harmonize provisions; and to repeal the original 8 sections. 9 Be it enacted by the people of the State of Nebraska, 10 LB120 2021 LB120 2021 -1- Section 1. Section 18-1724, Reissue Revised Statutes of Nebraska, is 1 amended to read: 2 18-1724 Notwithstanding any other law or laws heretofore enacted, 3 all cities and villages in this state shall have the power by ordinance 4 to define, regulate, suppress, and prevent discrimination on the basis of 5 race, color, creed, religion, ancestry, sex, marital status, national 6 origin, familial status as defined in section 20-311, handicap as defined 7 in section 20-313, age, or disability, sexual orientation, or gender 8 identity in employment, public accommodation, and housing and may provide 9 for the enforcement of such ordinances by providing appropriate penalties 10 for the violation thereof. It shall not be an unlawful employment 11 practice to refuse employment based on a policy of not employing both 12 husband and wife if such policy is equally applied to both sexes. 13 Sec. 2. Section 23-2525, Reissue Revised Statutes of Nebraska, is 14 amended to read: 15 23-2525 The county personnel officer shall, with the assistance of 16 two advisory groups, one of classified employees and one of department 17 heads, prepare and submit to the personnel policy board proposed 18 personnel rules and regulations for the classified service. He or she 19 shall give reasonable notice thereof to the heads of all agencies, 20 departments, county employee associations, and institutions affected 21 thereby, and they shall be given an opportunity, upon request, to appear 22 before the board and present their views thereon. The personnel policy 23 board shall submit the rules and regulations for adoption or amendment 24 and adoption by resolution of the board of county commissioners. 25 Amendments thereto shall be made in the same manner. The rules and 26 regulations shall provide: 27 (1) For a single integrated classification plan covering all 28 positions in the county service except those expressly exempt from the 29 County Civil Service Act, which shall group all positions into defined 30 classes containing a descriptive class title and a code identifying each 31 LB120 2021 LB120 2021 -2- class, and which shall be based on similarity of duties performed and 1 responsibilities assumed, so that the same qualifications may reasonably 2 be required and the same schedule of pay may be equitably applied to all 3 positions in the same class. After the classification plan has been 4 approved by the personnel policy board, the county personnel officer 5 shall be responsible for the administration and maintenance of the plan 6 and for the allocation of each classified position. Any employee affected 7 by the allocation of a position to a class shall, upon request, be given 8 a reasonable opportunity to be heard thereon by the personnel policy 9 board who shall issue an advisory opinion to the personnel officer; 10 (2) For a compensation plan for all employees in the classified 11 service, comprising salary schedules, hours of work, premium payments, 12 special allowances, and fringe benefits, considering the amount of money 13 available, the prevailing rates of pay in government and private 14 employment, the cost of living, the level of each class of position in 15 the classification plan, and other relevant factors. Initial, 16 intervening, and maximum rates of pay for each class shall be established 17 to provide for steps in salary advancement without change of duty in 18 recognition of demonstrated quality and length of service. The 19 compensation plan and amendments thereto shall be adopted in the manner 20 prescribed for rules and regulations and shall in no way limit the 21 authority of the board of county commissioners relative to appropriations 22 for salary and wage expenditures; 23 (3) For open competitive examinations to test the relative fitness 24 of applicants for the respective positions. Competitive examination shall 25 not be required for transferred employees transferring from positions in 26 the state or a political subdivision to positions in the county pursuant 27 to a merger of services or transferred employees transferring from 28 positions in the state or a political subdivision to positions in the 29 county due to the assumption of functions of the state or a political 30 subdivision by the county. The rules and regulations shall provide for 31 LB120 2021 LB120 2021 -3- the public announcement of the holding of examinations and shall 1 authorize the personnel officer to prescribe examination procedures and 2 to place the names of successful candidates on eligible lists in 3 accordance with their respective ratings. Examinations may be assembled 4 or unassembled and may include various job-related examining techniques, 5 such as rating training and experience, written tests, oral interviews, 6 recognition of professional licensing, performance tests, investigations, 7 and any other measures of ability to perform the duties of the position. 8 Examinations shall be scored objectively and employment registers shall 9 be established in the order of final score. Certification of eligibility 10 for appointment to vacancies shall be in accordance with a formula which 11 limits selection by the hiring department from among the highest ranking 12 available and eligible candidates, but which also permits selective 13 certification under appropriate conditions as prescribed in the rules and 14 regulations; 15 (4) For promotions which shall give appropriate consideration to 16 examinations and to record of performance, seniority, and conduct. 17 Vacancies shall be filled by promotion whenever practicable and in the 18 best interest of the service, and preference may be given to employees 19 within the department in which the vacancy occurs; 20 (5) For the rejection of candidates who fail to comply with 21 reasonable requirements of the personnel officer in regard to such 22 factors as physical conditions, training, and experience or who have been 23 guilty of infamous or disgraceful conduct, who are addicted to alcohol or 24 narcotics, or who have attempted any deception or fraud in connection 25 with an examination; 26 (6) For prohibiting Prohibiting disqualification of any person from 27 taking an examination, from promotion, or from holding a position because 28 of race; , sex, unless it constitutes a bona fide occupational 29 qualification; , or national origin; , physical disabilities; , age; 30 sexual orientation; gender identity; , political or religious opinions or 31 LB120 2021 LB120 2021 -4- affiliations; , or other factors which have no bearing upon the 1 individual's fitness to hold the position; 2 (7) For a period of probation not to exceed one year before 3 appointment or promotion may be made complete, and during which period a 4 probationer may be separated from his or her position without the right 5 of appeal or hearing except as provided in section 23-2531. After a 6 probationer has been separated, he or she may again be placed on the 7 eligible list at the discretion of the personnel officer. The rules shall 8 provide that a probationer shall be dropped from the payroll at the 9 expiration of his or her probationary period if, within ten days prior 10 thereto, the appointing authority has notified the personnel officer in 11 writing that the services of the employee have been unsatisfactory; 12 (8) When an employee has been promoted but fails to satisfactorily 13 perform the duties of the new position during the probationary period, he 14 or she shall be returned to a position comparable to that held 15 immediately prior to promotion at the current salary of such position; 16 (9) For temporary or seasonal appointments of limited terms of not 17 to exceed one year; 18 (10) For part-time appointment where the employee accrues benefits 19 of full-time employment on a basis proportional to the time worked; 20 (11) For emergency employment for not more than thirty days with or 21 without examination, with the consent of the county personnel officer and 22 department head; 23 (12) For provisional employment without competitive examination when 24 there is no appropriate eligible list available. No such provisional 25 employment shall continue longer than six months, nor shall successive 26 provisional appointments be allowed; 27 (13) For transfer from a position in one department to a similar 28 position in another department involving similar qualifications, duties, 29 responsibilities, and salary ranges; 30 (14) For the transfer of employees of the state or a political 31 LB120 2021 LB120 2021 -5- subdivision to the county pursuant to a merger of services or due to the 1 assumption of functions of the state or a political subdivision by the 2 county; 3 (15) For layoff by reason of lack of funds or work or abolition of 4 the position, or material change in duties or organization, for the 5 layoff of nontenured employees first, and for reemployment of permanent 6 employees so laid off, giving consideration in both layoff and 7 reemployment to performance record and seniority in service; 8 (16) For establishment of a plan for resolving employee grievances 9 and complaints; 10 (17) For hours of work, holidays, and attendance regulations in the 11 various classes of positions in the classified service, and for annual, 12 sick, and special leaves of absence, with or without pay, or at reduced 13 pay; 14 (18) For the development of employee morale, safety, and training 15 programs; 16 (19) For a procedure whereby an appointing authority may suspend, 17 reduce, demote, or dismiss an employee for misconduct, inefficiency, 18 incompetence, insubordination, malfeasance, or other unfitness to render 19 effective service and for the investigation and public hearing of appeals 20 of such suspended, reduced, demoted, or dismissed employee; 21 (20) For granting of leave without pay to a permanent employee to 22 accept a position in the unclassified service, and for his or her return 23 to a position comparable to that formerly held in the classified service 24 at the conclusion of such service; 25 (21) For regulation covering political activity of employees in the 26 classified service; and 27 (22) For other regulations not inconsistent with the County Civil 28 Service Act and which may be necessary for its effective implementation. 29 Sec. 3. Section 23-2531, Reissue Revised Statutes of Nebraska, is 30 amended to read: 31 LB120 2021 LB120 2021 -6- 23-2531 (1) Discrimination against any person in recruitment, 1 examination, appointment, training, promotion, retention, discipline, or 2 any other aspect of personnel administration because of political or 3 religious opinions or affiliations or because of race, national origin, 4 sexual orientation, gender identity, or other nonmerit factors shall be 5 prohibited. Discrimination on the basis of age or sex or physical 6 disability shall be prohibited unless specific age, sex, or physical 7 requirements constitute a bona fide occupational qualification necessary 8 to proper and efficient administration. The rules and regulations shall 9 provide for appeals in cases of alleged discrimination to the personnel 10 policy board whose determination shall be binding upon a finding of 11 discrimination. 12 (2) No person shall make any false statement, certificate, mark, 13 rating, or report with regard to any test, certification, or appointment 14 made under the County Civil Service Act or in any manner commit or 15 attempt to commit any fraud preventing the impartial execution of the act 16 and the rules and regulations promulgated pursuant to the act. 17 (3) No person shall, directly or indirectly, give, render, pay, 18 offer, solicit, or accept any money, service, or other valuable 19 consideration for or on account of any appointment, proposed appointment, 20 promotion, or proposed promotion to, or any advantage in, a position in 21 the classified service. 22 (4) No employee of the personnel office, examiner, or other person 23 shall defeat, deceive, or obstruct any person in his or her right to 24 examination, eligibility, certification, or appointment under the act, or 25 furnish to any person any special or secret information for the purpose 26 of affecting the rights or prospects of any persons with respect to 27 employment in the classified service. 28 Sec. 4. Section 23-2541, Reissue Revised Statutes of Nebraska, is 29 amended to read: 30 23-2541 The personnel policy board, if created, shall, with the 31 LB120 2021 LB120 2021 -7- assistance of two advisory groups, one of classified employees and one of 1 department heads, adopt proposed personnel rules and regulations for the 2 classified service and provide reasonable notice of proposed rules and 3 regulations to the heads of all agencies, departments, county employee 4 associations, and institutions affected thereby. Any person affected by 5 such rules and regulations shall be given an opportunity, upon request, 6 to appear before the personnel policy board and present his or her views 7 on the rules and regulations. The personnel policy board shall submit 8 proposed rules and regulations or amendments for adoption by the county 9 board. The county board may consider and adopt only personnel rules and 10 regulations or amendments proposed by the personnel policy board and may 11 not repeal or revoke a rule or regulation except upon the recommendation 12 of the personnel policy board. 13 The rules and regulations or amendments may provide: 14 (1) For a single integrated classification plan covering all 15 positions in the county service except those expressly exempt from 16 sections 23-2534 to 23-2544, which shall (a) group all positions into 17 defined classes containing a descriptive class title and a code 18 identifying each class and (b) be based on similarity of duties performed 19 and responsibilities assumed, so that the same qualifications may 20 reasonably be required and the same schedule of pay may be equitably 21 applied to all positions in the same class. After the classification plan 22 has been approved by the personnel policy board, the county personnel 23 officer shall be responsible for the administration and maintenance of 24 the plan and for the allocation of each classified position. Any employee 25 affected by the allocation of a position to a class shall, upon request, 26 be given a reasonable opportunity to be heard on such allocation by the 27 personnel policy board which shall issue an advisory opinion to the 28 county personnel officer; 29 (2) For a compensation plan for all employees in the classified 30 service, comprising salary schedules, attendance regulations, premium 31 LB120 2021 LB120 2021 -8- payments, special allowances, and fringe benefits, considering the amount 1 of money available, the prevailing rates of pay in government and private 2 employment, the cost of living, the level of each class of position in 3 the classification plan, and other relevant factors. The compensation 4 plan and amendments to such plan shall be adopted in the manner 5 prescribed for rules and regulations and shall in no way limit the 6 authority of the county board relative to appropriations for salary and 7 wage expenditures; 8 (3) For open competitive examinations to test the relative fitness 9 of applicants for the respective positions. The rules and regulations 10 shall provide for the public announcement of the holding of examinations 11 and shall authorize the county personnel officer to prescribe examination 12 procedures and to place the names of successful candidates on eligible 13 lists in accordance with their respective ratings. Examinations may be 14 assembled or unassembled and may include various job-related examining 15 techniques, such as rating training and experience, written tests, oral 16 interviews, recognition of professional licensing, performance tests, 17 investigations, and any other measures of ability to perform the duties 18 of the position. Examinations shall be scored objectively and employment 19 registers shall be established in the order of final score. Certification 20 of eligibility for appointment to vacancies shall be in accordance with a 21 formula which limits selection by the hiring department from among the 22 highest ranking available and eligible candidates, but which also permits 23 selective certification under appropriate conditions as prescribed in the 24 rules and regulations; 25 (4) For promotions which shall give appropriate consideration to 26 examinations and to record of performance, seniority, and conduct. 27 Vacancies shall be filled by promotion whenever practicable and in the 28 best interest of the service and preference may be given to employees 29 within the department in which the vacancy occurs; 30 (5) For the rejection of candidates who fail to comply with 31 LB120 2021 LB120 2021 -9- reasonable requirements of the county personnel officer in regard to such 1 factors as physical conditions, training, and experience, who have been 2 guilty of infamous or disgraceful conduct, who are currently abusing 3 alcohol or narcotics, or who have attempted any deception or fraud in 4 connection with an examination; 5 (6) For prohibiting disqualification of any person from (a) taking 6 an examination, (b) promotion, or (c) holding a position, solely because 7 of race, sex, national origin, physical disabilities, age, sexual 8 orientation, gender identity, political or religious opinions or 9 affiliations, or other factors which have no bearing upon the 10 individual's fitness to hold the position; 11 (7) For a period of probation, not to exceed one year, before 12 appointment or promotion may be made complete and during which period a 13 probationer may be separated from his or her position without the right 14 of appeal or hearing. After a probationer has been separated, he or she 15 may again be placed on the eligible list at the discretion of the county 16 personnel officer. The rules and regulations shall provide that a 17 probationer shall be dropped from the payroll at the expiration of his or 18 her probationary period if, within ten days prior thereto, the appointing 19 authority has notified the county personnel officer in writing that the 20 services of the employee have been unsatisfactory; 21 (8) For temporary or seasonal appointments of limited terms of not 22 to exceed one year; 23 (9) For part-time appointment in which the employee accrues benefits 24 of full-time employment on a basis proportional to the time worked; 25 (10) For emergency employment for not more than thirty days with or 26 without examination with the consent of the county personnel officer and 27 department head; 28 (11) For provisional employment without competitive examination when 29 there is no appropriate eligible list available. Provisional employment 30 shall not continue longer than six months and successive provisional 31 LB120 2021 LB120 2021 -10- appointments shall not be allowed; 1 (12) For transfer from a position in one department to a similar 2 position in another department involving similar qualifications, duties, 3 responsibilities, and salary ranges; 4 (13) For layoff by reason of lack of funds or work, abolition of the 5 position, or material change in duties or organization, for the layoff of 6 nontenured employees first, and for reemployment of permanent employees 7 so laid off, giving consideration in both layoff and reemployment to 8 performance record and seniority in service; 9 (14) For establishment of a plan for resolving employee grievances 10 and complaints; 11 (15) For holidays, for attendance regulations in the various classes 12 of positions in the classified service, and for annual, sick, and special 13 leaves of absence, with or without pay or at reduced pay; 14 (16) For the development of employee morale, safety, and training 15 programs; 16 (17) For a procedure whereby an appointing authority may suspend, 17 reduce, demote, or dismiss an employee for misconduct, inefficiency, 18 incompetence, insubordination, malfeasance, or other unfitness to render 19 effective service and for the investigation and public hearing of appeals 20 of such suspended, reduced, demoted, or dismissed employee; 21 (18) For granting of leave without pay to a permanent employee to 22 accept a position in the unclassified service and for his or her return 23 to a position comparable to that formerly held in the classified service 24 at the conclusion of such service; 25 (19) For regulation covering political activity of employees in the 26 classified service; and 27 (20) For other rules and regulations not inconsistent with sections 28 23-2534 to 23-2544 and the implementation of personnel policy in the 29 county. 30 Sec. 5. Section 29-401, Reissue Revised Statutes of Nebraska, is 31 LB120 2021 LB120 2021 -11- amended to read: 1 29-401 Every sheriff, deputy sheriff, marshal, deputy marshal, 2 security guard, police officer, or peace officer as defined in 3 subdivision (15) of section 49-801 shall arrest and detain any person 4 found violating any law of this state or any legal ordinance of any city 5 or incorporated village until a legal warrant can be obtained, except 6 that (1) any such law enforcement officer taking a juvenile under the age 7 of eighteen years into his or her custody for any violation herein 8 defined shall proceed as set forth in sections 43-248, 43-248.01, 43-250, 9 43-251, 43-251.01, and 43-253 and (2) the court in which the juvenile is 10 to appear shall not accept a plea from the juvenile until finding that 11 the parents of the juvenile have been notified or that reasonable efforts 12 to notify such parents have been made as provided in section 43-250. 13 Sec. 6. Section 48-215, Reissue Revised Statutes of Nebraska, is 14 amended to read: 15 48-215 It shall be unlawful for any person, firm, or corporation, 16 engaged to any extent whatsoever in the State of Nebraska in the 17 production, manufacture, or distribution of military or naval material, 18 equipment, or supplies for the State of Nebraska or the government of the 19 United States, to refuse to employ any person in any capacity, if such 20 said person is a citizen and is qualified, on account of the race, color, 21 creed, religion, or national origin, sexual orientation, or gender 22 identity of such said person. 23 Sec. 7. Section 48-628.13, Revised Statutes Cumulative Supplement, 24 2020, is amended to read: 25 48-628.13 Good cause for voluntarily leaving employment shall 26 include, but not be limited to, the following reasons: 27 (1) An individual has made all reasonable efforts to preserve the 28 employment but voluntarily leaves his or her work for the necessary 29 purpose of escaping abuse at the place of employment or abuse as defined 30 in section 42-903 between household members; 31 LB120 2021 LB120 2021 -12- (2) An individual left his or her employment voluntarily due to a 1 bona fide non-work-connected illness or injury that prevented him or her 2 from continuing the employment or from continuing the employment without 3 undue risk of harm to the individual; 4 (3) An individual left his or her employment to accompany his or her 5 spouse to the spouse's employment in a different city or new military 6 duty station; 7 (4) An individual left his or her employment because his or her 8 employer required the employee to relocate; 9 (5)(a) An individual is a construction worker and left his or her 10 employment voluntarily for the purpose of accepting previously secured 11 insured work in the construction industry if the commissioner finds that: 12 (i)(A) The quit occurred within thirty days immediately prior to the 13 established termination date of the job which the individual voluntarily 14 leaves, (B) the specific starting date of the new job is prior to the 15 established termination date of the job which the worker quits, (C) the 16 new job offered employment for a longer period of time than remained 17 available on the job which the construction worker voluntarily quit, and 18 (D) the worker had worked at least twenty days or more at the new job 19 after the established termination date of the previous job unless the new 20 job was terminated by a contract cancellation; or 21 (ii)(A) The construction worksite of the job which the worker quit 22 was more than fifty miles from his or her place of residence, (B) the new 23 construction job was fifty or more miles closer to his or her residence 24 than the job which he or she quit, and (C) the worker actually worked 25 twenty days or more at the new job unless the new job was terminated by a 26 contract cancellation. 27 (b) The provisions of this subdivision (5) shall not apply if the 28 individual is separated from the new job under conditions resulting in a 29 disqualification from benefits under section 48-628.10 or 48-628.12; 30 (6) An individual accepted a voluntary layoff to avoid bumping 31 LB120 2021 LB120 2021 -13- another worker; 1 (7) An individual left his or her employment as a result of being 2 directed to perform an illegal act; 3 (8) An individual left his or her employment because of unlawful 4 discrimination or workplace harassment on the basis of race, sex, or age, 5 sexual orientation, or gender identity; 6 (9) An individual left his or her employment because of unsafe 7 working conditions; 8 (10) An individual left his or her employment to attend school; or 9 (11) Equity and good conscience demand a finding of good cause. 10 Sec. 8. Section 48-1101, Reissue Revised Statutes of Nebraska, is 11 amended to read: 12 48-1101 It is the policy of this state to foster the employment of 13 all employable persons in the state on the basis of merit regardless of 14 their race, color, religion, sex, disability, or national origin, sexual 15 orientation, or gender identity and to safeguard their right to obtain 16 and hold employment without discrimination because of their race, color, 17 religion, sex, disability, or national origin, sexual orientation, or 18 gender identity. Denying equal opportunity for employment because of 19 race, color, religion, sex, disability, or national origin, sexual 20 orientation, or gender identity is contrary to the principles of freedom 21 and is a burden on the objectives of the public policy of this state. The 22 policy of this state does not require any person to employ an applicant 23 for employment because of his or her race, color, religion, sex, 24 disability, or national origin, sexual orientation, or gender identity, 25 and the policy of this state does not require any employer, employment 26 agency, labor organization, or joint labor-management committee to grant 27 preferential treatment to any individual or to any group because of race, 28 color, religion, sex, disability, or national origin, sexual orientation, 29 or gender identity. 30 It is the public policy of this state that all people in Nebraska, 31 LB120 2021 LB120 2021 -14- both with and without disabilities, shall have the right and opportunity 1 to enjoy the benefits of living, working, and recreating within this 2 state. It is the intent of the Legislature that state and local 3 governments, Nebraska businesses, Nebraska labor organizations, and 4 Nebraskans with disabilities understand their rights and responsibilities 5 under the law regarding employment discrimination and the prevention of 6 discrimination on the basis of disability. 7 Sec. 9. Section 48-1104, Reissue Revised Statutes of Nebraska, is 8 amended to read: 9 48-1104 It shall be an unlawful employment practice for an employer: 10 (1) To fail or refuse to hire, to discharge, or to harass any 11 individual, or otherwise to discriminate against any individual with 12 respect to compensation, terms, conditions, or privileges of employment, 13 because of such individual's race, color, religion, sex, disability, 14 marital status, or national origin, sexual orientation, or gender 15 identity; or 16 (2) To limit, advertise, solicit, segregate, or classify employees 17 in any way which would deprive or tend to deprive any individual of 18 employment opportunities or otherwise adversely affect such individual's 19 status as an employee, because of such individual's race, color, 20 religion, sex, disability, marital status, or national origin, sexual 21 orientation, or gender identity. 22 Sec. 10. Section 48-1105, Reissue Revised Statutes of Nebraska, is 23 amended to read: 24 48-1105 It shall be an unlawful employment practice for an 25 employment agency to fail or refuse to refer for employment, or otherwise 26 to discriminate against, any individual because of race, color, religion, 27 sex, disability, marital status, or national origin, sexual orientation, 28 or gender identity, or to classify or refer for employment any individual 29 on the basis of race, color, religion, sex, disability, marital status, 30 or national origin, sexual orientation, or gender identity. 31 LB120 2021 LB120 2021 -15- Sec. 11. Section 48-1106, Reissue Revised Statutes of Nebraska, is 1 amended to read: 2 48-1106 It shall be an unlawful employment practice for a labor 3 organization: 4 (1) To exclude or to expel from its membership, or otherwise to 5 discriminate against, any individual because of race, color, religion, 6 sex, disability, marital status, or national origin, sexual orientation, 7 or gender identity; 8 (2) To limit, segregate, or classify its membership, or to classify 9 or fail or refuse to refer for employment any individual, in any way 10 which would deprive or tend to deprive any individual of employment 11 opportunities, or would limit such employment opportunities or otherwise 12 adversely affect such individual's status as an employee or as an 13 applicant for employment, because of such individual's race, color, 14 religion, sex, disability, marital status, or national origin, sexual 15 orientation, or gender identity; or 16 (3) To cause or attempt to cause an employer to discriminate against 17 an individual in violation of this section. 18 Sec. 12. Section 48-1107, Reissue Revised Statutes of Nebraska, is 19 amended to read: 20 48-1107 It shall be an unlawful employment practice for any 21 employer, labor organization, or joint labor-management committee 22 controlling apprenticeship or other training or retraining, including on- 23 the-job training programs to discriminate against any individual because 24 of race, color, religion, sex, disability, marital status, or national 25 origin, sexual orientation, or gender identity in admission to, or 26 employment in, any program established to provide apprenticeship or other 27 training. 28 Sec. 13. Section 48-1111, Revised Statutes Cumulative Supplement, 29 2020, is amended to read: 30 48-1111 (1) Except as otherwise provided in the Nebraska Fair 31 LB120 2021 LB120 2021 -16- Employment Practice Act, it shall not be an unlawful employment practice 1 for an employer to apply different standards of compensation, or 2 different terms, conditions, or privileges of employment pursuant to a 3 bona fide seniority or merit system or a system which measures earnings 4 by quantity or quality of production or to employees who work in 5 different locations, if such differences are not the result of an 6 intention to discriminate because of race, color, religion, sex, 7 disability, marital status, or national origin, sexual orientation, or 8 gender identity, nor shall it be an unlawful employment practice for an 9 employer to give and to act upon the results of any professionally 10 developed ability test if such test, its administration, or action upon 11 the results is not designed, intended, or used to discriminate because of 12 race, color, religion, sex, disability, marital status, or national 13 origin, sexual orientation, or gender identity. 14 It shall not be an unlawful employment practice for a covered entity 15 to deny privileges of employment to an individual with a disability when 16 the qualification standards, tests, or selection criteria that screen out 17 or tend to screen out or otherwise deny a job or benefit to an individual 18 with a disability: 19 (a) Have been shown to be job-related and consistent with business 20 necessity and such performance cannot be accomplished by reasonable 21 accommodation, as required by the Nebraska Fair Employment Practice Act 22 and the federal Americans with Disabilities Act of 1990; or 23 (b) Include a requirement that an individual shall not pose a direct 24 threat, involving a significant risk to the health or safety of other 25 individuals in the workplace, that cannot be eliminated by reasonable 26 accommodation. 27 It shall not be an unlawful employment practice to refuse employment 28 based on a policy of not employing both husband and wife if such policy 29 is equally applied to both sexes. 30 (2) Except as otherwise provided in the Nebraska Fair Employment 31 LB120 2021 LB120 2021 -17- Practice Act, women affected by pregnancy, childbirth, or related medical 1 conditions shall be treated the same for all employment-related purposes, 2 including receipt of employee benefits, as other persons not so affected 3 but similar in their ability or inability to work, and nothing in this 4 section shall be interpreted to provide otherwise. 5 This section shall not require an employer to provide employee 6 benefits for abortion except when medical complications have arisen from 7 an abortion. 8 Nothing in this section shall preclude an employer from providing 9 employee benefits for abortion under fringe benefit programs or otherwise 10 affect bargaining agreements in regard to abortion. 11 Sec. 14. Section 48-1113, Reissue Revised Statutes of Nebraska, is 12 amended to read: 13 48-1113 Nothing in the Nebraska Fair Employment Practice Act shall 14 be interpreted to require any employer, employment agency, labor 15 organization, or joint labor-management committee subject to the act to 16 grant preferential treatment to any individual or to any group because of 17 the race, color, religion, sex, disability, marital status, or national 18 origin, sexual orientation, or gender identity of such individual or 19 group on account of an imbalance which may exist with respect to the 20 total number or percentage of persons of any race, color, religion, sex, 21 disability, marital status, or national origin, sexual orientation, or 22 gender identity employed by any employer, referred or classified for 23 employment by any employment agency or labor organization, admitted to 24 membership or classified by any labor organization, or admitted to, or 25 employed in, any apprenticeship or other training program, in comparison 26 with the total number or percentage of persons of such race, color, 27 religion, sex, disability, marital status, or national origin, sexual 28 orientation, or gender identity in any community, section, or other area, 29 or in the available work force in any community, section, or other area. 30 Sec. 15. Section 48-1115, Reissue Revised Statutes of Nebraska, is 31 LB120 2021 LB120 2021 -18- amended to read: 1 48-1115 It shall be an unlawful employment practice for an employer, 2 labor organization, or employment agency to print or publish or cause to 3 be printed or published any notice or advertisement relating to 4 employment by such an employer or membership in or any classification or 5 referral for employment by such a labor organization, or relating to any 6 classification or referral for employment by such an employment agency, 7 indicating any preference, limitation, specification, or discrimination 8 based on race, color, religion, sex, disability, marital status, or 9 national origin, sexual orientation, or gender identity, except that such 10 a notice or advertisement may indicate a preference, limitation, 11 specification, or discrimination based on religion, sex, disability, 12 marital status, or national origin when religion, sex, disability, 13 marital status, or national origin is a bona fide occupational 14 qualification for employment. 15 Sec. 16. Section 48-1117, Revised Statutes Cumulative Supplement, 16 2020, is amended to read: 17 48-1117 The commission shall have the following powers and duties: 18 (1) To receive, investigate, and pass upon charges of unlawful 19 employment practices anywhere in the state; 20 (2) To hold hearings, subpoena witnesses, compel their attendance, 21 administer oaths, and take the testimony of any person under oath and, in 22 connection therewith, to require the production for examination of any 23 books and papers relevant to any allegation of unlawful employment 24 practice pending before the commission. The commission may make rules as 25 to the issuance of subpoenas, subject to the approval by a constitutional 26 majority of the elected members of the Legislature; 27 (3) To cooperate with the federal government and with local agencies 28 to effectuate the purposes of the Nebraska Fair Employment Practice Act, 29 including the sharing of information possessed by the commission on a 30 case that has also been filed with the federal government or local 31 LB120 2021 LB120 2021 -19- agencies if both the employer and complainant have been notified of the 1 filing; 2 (4) To attempt to eliminate unfair employment practices by means of 3 conference, mediation, conciliation, arbitration, and persuasion; 4 (5) To require that every employer, employment agency, and labor 5 organization subject to the act shall (a) make and keep such records 6 relevant to the determinations of whether unlawful employment practices 7 have been or are being committed, (b) preserve such records for such 8 periods, and (c) make such reports therefrom, as the commission shall 9 prescribe by regulation or order, after public hearing, as reasonable, 10 necessary, or appropriate for the enforcement of the act or the 11 regulations or orders thereunder. The commission shall, by regulation, 12 require each employer, labor organization, and joint labor-management 13 committee subject to the act which controls an apprenticeship or other 14 training program to maintain such records as are reasonably necessary to 15 carry out the purposes of the act, including, but not limited to, a list 16 of applicants who wish to participate in such program, including the 17 chronological order in which such applications were received, and to 18 furnish to the commission, upon request, a detailed description of the 19 manner in which persons are selected to participate in the apprenticeship 20 or other training program. Any employer, employment agency, labor 21 organization, or joint labor-management committee which believes that the 22 application to it of any regulation or order issued under this section 23 would result in undue hardship may either apply to the commission for an 24 exemption from the application of such regulation or order or bring a 25 civil action in the district court for the district where such records 26 are kept. If the commission or the court, as the case may be, finds that 27 the application of the regulation or order to the employer, employment 28 agency, or labor organization in question would impose an undue hardship, 29 the commission or the court, as the case may be, may grant appropriate 30 relief; 31 LB120 2021 LB120 2021 -20- (6) To report, not less than once every two years, to the Clerk of 1 the Legislature and the Governor, on the hearings it has conducted and 2 the decisions it has rendered, the other work performed by it to carry 3 out the purposes of the act, and to make recommendations for such further 4 legislation concerning abuses and discrimination because of race, color, 5 religion, sex, disability, marital status, or national origin, sexual 6 orientation, or gender identity, as may be desirable. The report shall 7 also include the number of complaints filed under the act alleging a 8 violation of subdivision (2) of section 48-1107.01 and the resolution of 9 such complaints. The report submitted to the Clerk of the Legislature 10 shall be submitted electronically. Each member of the Legislature shall 11 receive an electronic copy of the report required by this subdivision by 12 making a request for it to the chairperson of the commission; and 13 (7) To adopt and promulgate rules and regulations necessary to carry 14 out the duties prescribed in the act. 15 Sec. 17. Section 48-1119, Revised Statutes Cumulative Supplement, 16 2020, is amended to read: 17 48-1119 (1) In case of failure to eliminate any unlawful employment 18 practice by informal methods of conference, conciliation, persuasion, 19 mediation, or arbitration, the commission may order a public hearing. If 20 such hearing is ordered, the commission shall cause to be issued and 21 served a written notice, together with a copy of the complaint, requiring 22 the person, employer, labor organization, or employment agency named in 23 the complaint, hereinafter referred to as respondent, to answer such 24 charges at a hearing before the commission at a time and place which 25 shall be specified in such notice. Such hearing shall be within the 26 county where the alleged unlawful employment practice occurred. The 27 complainant shall be a party to the proceeding, and in the discretion of 28 the commission any other person whose testimony has a bearing on the 29 matter may be allowed to intervene therein. Both the complainant and the 30 respondent, in addition to the commission, may introduce witnesses at the 31 LB120 2021 LB120 2021 -21- hearing. The respondent may file a verified answer to the allegations of 1 the complaint and may appear at such hearing in person and with or 2 without counsel. Testimony or other evidence may be introduced by either 3 party. All evidence shall be under oath and a record thereof shall be 4 made and preserved. Such proceedings shall, so far as practicable, be 5 conducted in accordance with the rules of evidence applicable in the 6 district courts of the State of Nebraska, and shall be of public record. 7 (2) No person shall be excused from testifying or from producing any 8 book, document, paper, or account in any investigation, or inquiry by, or 9 hearing before the commission when ordered to do so, upon the ground that 10 the testimony or evidence, book, document, paper, or account required of 11 such person may tend to incriminate such person in or subject such person 12 to penalty or forfeiture; but no person shall be prosecuted, punished, or 13 subjected to any forfeiture or penalty for or on account of any act, 14 transaction, matter, or thing concerning which such person shall have 15 been compelled under oath to testify or produce documentary evidence, 16 except that no person so testifying shall be exempt from prosecution or 17 punishment for any perjury committed by such person in his or her 18 testimony. Such immunity shall extend only to a natural person who, in 19 obedience to a subpoena, gives testimony under oath or produces evidence, 20 documentary or otherwise, under oath. Nothing in this subsection shall be 21 construed as precluding any person from claiming any right or privilege 22 available to such person under the fifth amendment to the Constitution of 23 the United States. 24 (3) After the conclusion of the hearing, the commission shall, 25 within ten days of the receipt of the transcript or the receipt of the 26 recommendations from the hearing officer, make and file its findings of 27 fact and conclusions of law and make and enter an appropriate order. The 28 hearing officer need not refer to the page and line numbers of the 29 transcript when making his or her recommendation to the commission. Such 30 findings of fact and conclusions of law shall be in sufficient detail to 31 LB120 2021 LB120 2021 -22- enable a court on appeal to determine the controverted questions 1 presented by the proceedings and whether proper weight was given to the 2 evidence. If the commission determines that the respondent has 3 intentionally engaged in or is intentionally engaging in any unlawful 4 employment practice, it shall issue and cause to be served on such 5 respondent an order requiring such respondent to cease and desist from 6 such unlawful employment practice and order such other affirmative action 7 as may be appropriate which may include, but shall not be limited to, 8 reinstatement or hiring of employees, with or without backpay. Backpay 9 liability shall not accrue from a date more than two years prior to the 10 filing of the charge with the commission. Interim earnings or amounts 11 earnable with reasonable diligence by the person or persons discriminated 12 against shall operate to reduce the backpay otherwise allowable. 13 (4) A complainant who has suffered physical, emotional, or financial 14 harm as a result of a violation of section 48-1104 or 48-1114 may, at any 15 stage of the proceedings prior to dismissal, file an action directly in 16 the district court of the county where such alleged violation occurred. 17 If the complainant files a district court action on the charge, the 18 complainant shall provide written notice of such filing to the 19 commission, and such notification shall immediately terminate all 20 proceedings before the commission. The district court shall file and try 21 such case as any other civil action, and any successful complainant shall 22 be entitled to appropriate relief, including temporary or permanent 23 injunctive relief, general and special damages, reasonable attorney's 24 fees, and costs. 25 (5) No order of the commission shall require the admission or 26 reinstatement of an individual as a member of a labor organization or the 27 hiring, reinstatement, or promotion of an individual as an employee, or 28 the payment to him or her of any backpay, if such individual was refused 29 admission, suspended, or expelled, or was refused employment or 30 advancement or was suspended or discharged for any reason other than 31 LB120 2021 LB120 2021 -23- discrimination on account of race, color, religion, sex, disability, 1 marital status, or national origin, sexual orientation, or gender 2 identity or in violation of section 48-1114. If the commission finds that 3 a respondent has not engaged in any unfair employment practice, it shall 4 within thirty days state its findings of fact and conclusions of law. A 5 copy of any order shall be served upon the person against whom it runs or 6 his or her attorney and notice thereof shall be given to the other 7 parties to the proceedings or their attorneys. Such order shall take 8 effect twenty days after service thereof unless otherwise provided and 9 shall continue in force either for a period which may be designated 10 therein or until changed or revoked by the commission. 11 (6) Except as provided in subsection (4) of this section, until a 12 transcript of the record of the proceedings is filed in the district 13 court as provided in section 48-1120, the commission may, at any time 14 upon reasonable notice and in such a manner it shall deem proper, modify 15 or set aside, in whole or in part, any finding or order made by it. 16 Sec. 18. Section 48-1122, Reissue Revised Statutes of Nebraska, is 17 amended to read: 18 48-1122 Every contract to which the state or any of its political 19 subdivisions is a party shall contain a provision requiring the 20 contractor and its his subcontractors not to discriminate against any 21 employee or applicant for employment, to be employed in the performance 22 of such contract, with respect to such person's his hire, tenure, terms, 23 conditions, or privileges of employment, because of such person's his 24 race, color, religion, sex, disability, or national origin, sexual 25 orientation, or gender identity. 26 Sec. 19. Section 48-1124, Reissue Revised Statutes of Nebraska, is 27 amended to read: 28 48-1124 Nothing contained in the Nebraska Fair Employment Practice 29 Act shall be deemed to repeal any of the provisions of the civil rights 30 law, any other law of this state, or any municipal ordinance relating to 31 LB120 2021 LB120 2021 -24- discrimination because of race, creed, color, religion, sex, disability, 1 or national origin, sexual orientation, or gender identity. 2 Sec. 20. Section 49-801, Reissue Revised Statutes of Nebraska, is 3 amended to read: 4 49-801 Unless the context is shown to intend otherwise, words and 5 phrases in the statutes of Nebraska hereafter enacted are used in the 6 following sense: 7 (1) Acquire when used in connection with a grant of power or 8 property right to any person includes shall include the purchase, grant, 9 gift, devise, bequest, and obtaining by eminent domain; 10 (2) Action includes shall include any proceeding in any court of 11 this state; 12 (3) Attorney means shall mean attorney at law; 13 (4) Company includes shall include any corporation, partnership, 14 limited liability company, joint-stock company, joint venture, or 15 association; 16 (5) Domestic when applied to corporations means shall mean all those 17 created by authority of this state; 18 (6) Federal refers shall refer to the United States; 19 (7) Foreign when applied to corporations includes shall include all 20 those created by authority other than that of this state; 21 (8) Gender identity means an individual's internal sense of the 22 individual's own gender, regardless of the sex the individual was 23 assigned at birth; 24 (9) (8) Grantee includes shall include every person to whom any 25 estate or interest passes in or by any conveyance; 26 (10) (9) Grantor includes shall include every person from or by whom 27 any estate or interest passes in or by any conveyance; 28 (11) (10) Inhabitant shall be construed to mean a resident in the 29 particular locality in reference to which that word is used; 30 (12) (11) Land or real estate includes shall include lands, 31 LB120 2021 LB120 2021 -25- tenements, and hereditaments and all rights thereto and interest therein 1 other than a chattel interest; 2 (13) (12) Magistrate includes shall include judge of the county 3 court and clerk magistrate; 4 (14) (13) Month means shall mean calendar month; 5 (15) (14) Oath includes shall include affirmation in all cases in 6 which an affirmation may be substituted for an oath; 7 (16) (15) Peace officer includes shall include sheriffs, coroners, 8 jailers, marshals, police officers, state highway patrol officers, 9 members of the National Guard on active service by direction of the 10 Governor during periods of emergency, and all other persons with similar 11 authority to make arrests; 12 (17) (16) Person includes shall include bodies politic and 13 corporate, societies, communities, the public generally, individuals, 14 partnerships, limited liability companies, joint-stock companies, and 15 associations; 16 (18) (17) Personal estate includes shall include money, goods, 17 chattels, claims, and evidences of debt; 18 (19) (18) Process means shall mean a summons, subpoena, or notice to 19 appear issued out of a court in the course of judicial proceedings; 20 (20) (19) Service animal has shall have the same meaning as in 28 21 C.F.R. 36.104, as such regulation existed on January 1, 2008; 22 (21) Sexual orientation means actual or perceived homosexuality, 23 heterosexuality, or bisexuality; 24 (22) (20) State when applied to different states of the United 25 States shall be construed to extend to and include the District of 26 Columbia and the several territories organized by Congress; 27 (23) (21) Sworn includes shall include affirmed in all cases in 28 which an affirmation may be substituted for an oath; 29 (24) (22) The United States includes shall include territories, 30 outlying possessions, and the District of Columbia; 31 LB120 2021 LB120 2021 -26- (25) (23) Violate includes shall include failure to comply with; 1 (26) (24) Writ means shall signify an order or citation in writing 2 issued in the name of the state out of a court or by a judicial officer; 3 and 4 (27) (25) Year means shall mean calendar year. 5 Sec. 21. Section 81-1355, Reissue Revised Statutes of Nebraska, is 6 amended to read: 7 81-1355 It is declared to be in the best interest of the State of 8 Nebraska to insure that historic and any present patterns of sex and 9 racial discrimination are eliminated and that each agency pursue a course 10 of action in all areas of its operation to insure that all citizens are 11 provided with fair and equal opportunities for employment and advancement 12 regardless of race, color, religion, national origin, age, sex, marital 13 status, or physical or mental disability, sexual orientation, or gender 14 identity. 15 Affirmative action shall be taken to insure the implementation of a 16 policy in state government employment which provides equal employment 17 opportunity. Such policy shall apply to: 18 (1) Hiring, placement, upgrading, transfer, or demotion of 19 employees; 20 (2) Recruitment, advertising, or solicitation for employment; 21 (3) Treatment during employment; 22 (4) Rates of pay or other forms of compensation; 23 (5) Selection for training; 24 (6) Layoff, termination, or reinstatement; and 25 (7) Any other terms or conditions of employment. 26 Sec. 22. Section 81-1356, Reissue Revised Statutes of Nebraska, is 27 amended to read: 28 81-1356 As used in sections 81-1355 to 81-1368, unless the context 29 otherwise requires: 30 (1) Equal employment opportunity shall mean the right of all persons 31 LB120 2021 LB120 2021 -27- to work and to advance on the basis of merit and ability without regard 1 to race, color, religion, national origin, age, sex, marital status, or 2 physical or mental disability, sexual orientation, or gender identity; 3 (2) Affirmative action shall mean a deliberate and sustained effort 4 to identify and eliminate barriers to employment and advancement which 5 may discriminate against various groups. Particular emphasis shall be 6 focused on racial minorities, women, and the disabled but not to the 7 exclusion of the criteria set forth in subdivision (1) of this section. 8 The ultimate goal is to achieve, at all levels, a state government work 9 force which is representative of the state working population. The 10 composition of the state working population shall be determined annually 11 through reports of the Department of Labor. Such a goal is to be an 12 integral part of every aspect of personnel policy; 13 (3) Office shall mean the Affirmative Action Office; 14 (4) Program shall mean the Affirmative Action Program; 15 (5) Agency shall mean each department, agency, office, board, 16 commission, and committee of the State of Nebraska under the executive 17 authority of the Governor; 18 (6) Plan shall mean the Affirmative Action Plan prepared by the 19 individual agencies; and 20 (7) Administrator shall mean the Affirmative Action Administrator. 21 Sec. 23. Original sections 18-1724, 23-2525, 23-2531, 23-2541, 22 29-401, 48-215, 48-1101, 48-1104, 48-1105, 48-1106, 48-1107, 48-1113, 23 48-1115, 48-1122, 48-1124, 49-801, 81-1355, and 81-1356, Reissue Revised 24 Statutes of Nebraska, and sections 48-628.13, 48-1111, 48-1117, and 25 48-1119, Revised Statutes Cumulative Supplement, 2020, are repealed. 26 LB120 2021 LB120 2021 -28-