Text of NE LB 586 (2016)

LEGISLATURE OF NEBRASKA ONE HUNDRED FOURTH LEGISLATURE FIRST SESSION LEGISLATIVE BILL 586 Introduced by Morfeld, 46; Haar, 21; Hansen, 26; Howard, 9; Nordquist, 7; Pansing Brooks, 28. Read first time January 21, 2015 Committee: A BILL FOR AN ACT relating to discrimination; to amend sections 18-1724, 1 23-2525, 23-2531, 23-2541, 48-215, 48-628.01, 48-1101, 48-1104, 2 48-1105, 48-1106, 48-1107, 48-1111, 48-1113, 48-1115, 48-1119, 3 48-1122, 48-1124, 49-801, 81-1355, and 81-1356, Reissue Revised 4 Statutes of Nebraska, and sections 29-401 and 48-1117, Revised 5 Statutes Cumulative Supplement, 2014; to prohibit discrimination 6 based upon sexual orientation, gender identity, sex, and disability 7 as prescribed; to change the Nebraska Fair Employment Practice Act; 8 to define terms; to harmonize provisions; and to repeal the original 9 sections. 10 Be it enacted by the people of the State of Nebraska, 11 LB586 2015 LB586 2015 -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, sexual orientation, gender 6 identity, marital status, national origin, familial status as defined in 7 section 20-311, handicap as defined in section 20-313, age, or disability 8 in employment, public accommodation, and housing and may provide for the 9 enforcement of such ordinances by providing appropriate penalties for the 10 violation thereof. It shall not be an unlawful employment practice to 11 refuse employment based on a policy of not employing both husband and 12 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 LB586 2015 LB586 2015 -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 LB586 2015 LB586 2015 -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, political 30 or religious opinions or affiliations, sexual orientation, gender 31 LB586 2015 LB586 2015 -4- identity, or other factors which have no bearing upon the individual's 1 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) That when When an employee has been promoted but fails to 13 satisfactorily perform the duties of the new position during the 14 probationary period, he or she shall be returned to a position comparable 15 to that held immediately prior to promotion at the current salary of such 16 position; 17 (9) For temporary or seasonal appointments of limited terms of not 18 to exceed one year; 19 (10) For part-time appointment where the employee accrues benefits 20 of full-time employment on a basis proportional to the time worked; 21 (11) For emergency employment for not more than thirty days with or 22 without examination, with the consent of the county personnel officer and 23 department head; 24 (12) For provisional employment without competitive examination when 25 there is no appropriate eligible list available. No such provisional 26 employment shall continue longer than six months, nor shall successive 27 provisional appointments be allowed; 28 (13) For transfer from a position in one department to a similar 29 position in another department involving similar qualifications, duties, 30 responsibilities, and salary ranges; 31 LB586 2015 LB586 2015 -5- (14) For the transfer of employees of the state or a political 1 subdivision to the county pursuant to a merger of services or due to the 2 assumption of functions of the state or a political subdivision by the 3 county; 4 (15) For layoff by reason of lack of funds or work or abolition of 5 the position, or material change in duties or organization, for the 6 layoff of nontenured employees first, and for reemployment of permanent 7 employees so laid off, giving consideration in both layoff and 8 reemployment to performance record and seniority in service; 9 (16) For establishment of a plan for resolving employee grievances 10 and complaints; 11 (17) For hours of work, holidays, and attendance regulations in the 12 various classes of positions in the classified service, and for annual, 13 sick, and special leaves of absence, with or without pay, or at reduced 14 pay; 15 (18) For the development of employee morale, safety, and training 16 programs; 17 (19) For a procedure whereby an appointing authority may suspend, 18 reduce, demote, or dismiss an employee for misconduct, inefficiency, 19 incompetence, insubordination, malfeasance, or other unfitness to render 20 effective service and for the investigation and public hearing of appeals 21 of such suspended, reduced, demoted, or dismissed employee; 22 (20) For granting of leave without pay to a permanent employee to 23 accept a position in the unclassified service, and for his or her return 24 to a position comparable to that formerly held in the classified service 25 at the conclusion of such service; 26 (21) For regulation covering political activity of employees in the 27 classified service; and 28 (22) For other regulations not inconsistent with the County Civil 29 Service Act and which may be necessary for its effective implementation. 30 Sec. 3. Section 23-2531, Reissue Revised Statutes of Nebraska, is 31 LB586 2015 LB586 2015 -6- amended to read: 1 23-2531 (1) Discrimination against any person in recruitment, 2 examination, appointment, training, promotion, retention, discipline, or 3 any other aspect of personnel administration because of political or 4 religious opinions or affiliations or because of race, national origin, 5 sexual orientation, gender identity, or other nonmerit factors shall be 6 prohibited. Discrimination on the basis of age or sex or physical 7 disability shall be prohibited unless specific age, sex, or physical 8 requirements constitute a bona fide occupational qualification necessary 9 to proper and efficient administration. The rules and regulations shall 10 provide for appeals in cases of alleged discrimination to the personnel 11 policy board whose determination shall be binding upon a finding of 12 discrimination. 13 (2) No person shall make any false statement, certificate, mark, 14 rating, or report with regard to any test, certification, or appointment 15 made under the County Civil Service Act or in any manner commit or 16 attempt to commit any fraud preventing the impartial execution of the act 17 and the rules and regulations adopted and promulgated pursuant to the 18 act. 19 (3) No person shall, directly or indirectly, give, render, pay, 20 offer, solicit, or accept any money, service, or other valuable 21 consideration for or on account of any appointment, proposed appointment, 22 promotion, or proposed promotion to, or any advantage in, a position in 23 the classified service. 24 (4) No employee of the personnel office, examiner, or other person 25 shall defeat, deceive, or obstruct any person in his or her right to 26 examination, eligibility, certification, or appointment under the act, or 27 furnish to any person any special or secret information for the purpose 28 of affecting the rights or prospects of any persons with respect to 29 employment in the classified service. 30 Sec. 4. Section 23-2541, Reissue Revised Statutes of Nebraska, is 31 LB586 2015 LB586 2015 -7- amended to read: 1 23-2541 The personnel policy board, if created, shall, with the 2 assistance of two advisory groups, one of classified employees and one of 3 department heads, adopt proposed personnel rules and regulations for the 4 classified service and provide reasonable notice of proposed rules and 5 regulations to the heads of all agencies, departments, county employee 6 associations, and institutions affected thereby. Any person affected by 7 such rules and regulations shall be given an opportunity, upon request, 8 to appear before the personnel policy board and present his or her views 9 on the rules and regulations. The personnel policy board shall submit 10 proposed rules and regulations or amendments for adoption by the county 11 board. The county board may consider and adopt only personnel rules and 12 regulations or amendments proposed by the personnel policy board and may 13 not repeal or revoke a rule or regulation except upon the recommendation 14 of the personnel policy board. 15 The rules and regulations or amendments may provide: 16 (1) For a single integrated classification plan covering all 17 positions in the county service except those expressly exempt from 18 sections 23-2534 to 23-2544, which shall (a) group all positions into 19 defined classes containing a descriptive class title and a code 20 identifying each class and (b) be based on similarity of duties performed 21 and responsibilities assumed, so that the same qualifications may 22 reasonably be required and the same schedule of pay may be equitably 23 applied to all positions in the same class. After the classification plan 24 has been approved by the personnel policy board, the county personnel 25 officer shall be responsible for the administration and maintenance of 26 the plan and for the allocation of each classified position. Any employee 27 affected by the allocation of a position to a class shall, upon request, 28 be given a reasonable opportunity to be heard on such allocation by the 29 personnel policy board which shall issue an advisory opinion to the 30 county personnel officer; 31 LB586 2015 LB586 2015 -8- (2) For a compensation plan for all employees in the classified 1 service, comprising salary schedules, attendance regulations, premium 2 payments, special allowances, and fringe benefits, considering the amount 3 of money available, the prevailing rates of pay in government and private 4 employment, the cost of living, the level of each class of position in 5 the classification plan, and other relevant factors. The compensation 6 plan and amendments to such plan shall be adopted in the manner 7 prescribed for rules and regulations and shall in no way limit the 8 authority of the county board relative to appropriations for salary and 9 wage expenditures; 10 (3) For open competitive examinations to test the relative fitness 11 of applicants for the respective positions. The rules and regulations 12 shall provide for the public announcement of the holding of examinations 13 and shall authorize the county personnel officer to prescribe examination 14 procedures and to place the names of successful candidates on eligible 15 lists in accordance with their respective ratings. Examinations may be 16 assembled or unassembled and may include various job-related examining 17 techniques, such as rating training and experience, written tests, oral 18 interviews, recognition of professional licensing, performance tests, 19 investigations, and any other measures of ability to perform the duties 20 of the position. Examinations shall be scored objectively and employment 21 registers shall be established in the order of final score. Certification 22 of eligibility for appointment to vacancies shall be in accordance with a 23 formula which limits selection by the hiring department from among the 24 highest ranking available and eligible candidates, but which also permits 25 selective certification under appropriate conditions as prescribed in the 26 rules and regulations; 27 (4) For promotions which shall give appropriate consideration to 28 examinations and to record of performance, seniority, and conduct. 29 Vacancies shall be filled by promotion whenever practicable and in the 30 best interest of the service and preference may be given to employees 31 LB586 2015 LB586 2015 -9- within the department in which the vacancy occurs; 1 (5) For the rejection of candidates who fail to comply with 2 reasonable requirements of the county personnel officer in regard to such 3 factors as physical conditions, training, and experience, who have been 4 guilty of infamous or disgraceful conduct, who are currently abusing 5 alcohol or narcotics, or who have attempted any deception or fraud in 6 connection with an examination; 7 (6) For prohibiting disqualification of any person from (a) taking 8 an examination, (b) promotion, or (c) holding a position, solely because 9 of race, sex, national origin, sexual orientation, gender identity, 10 physical disabilities, age, political or religious opinions or 11 affiliations, or other factors which have no bearing upon the 12 individual's fitness to hold the position; 13 (7) For a period of probation, not to exceed one year, before 14 appointment or promotion may be made complete and during which period a 15 probationer may be separated from his or her position without the right 16 of appeal or hearing. After a probationer has been separated, he or she 17 may again be placed on the eligible list at the discretion of the county 18 personnel officer. The rules and regulations shall provide that a 19 probationer shall be dropped from the payroll at the expiration of his or 20 her probationary period if, within ten days prior thereto, the appointing 21 authority has notified the county personnel officer in writing that the 22 services of the employee have been unsatisfactory; 23 (8) For temporary or seasonal appointments of limited terms of not 24 to exceed one year; 25 (9) For part-time appointment in which the employee accrues benefits 26 of full-time employment on a basis proportional to the time worked; 27 (10) For emergency employment for not more than thirty days with or 28 without examination with the consent of the county personnel officer and 29 department head; 30 (11) For provisional employment without competitive examination when 31 LB586 2015 LB586 2015 -10- there is no appropriate eligible list available. Provisional employment 1 shall not continue longer than six months and successive provisional 2 appointments shall not be allowed; 3 (12) For transfer from a position in one department to a similar 4 position in another department involving similar qualifications, duties, 5 responsibilities, and salary ranges; 6 (13) For layoff by reason of lack of funds or work, abolition of the 7 position, or material change in duties or organization, for the layoff of 8 nontenured employees first, and for reemployment of permanent employees 9 so laid off, giving consideration in both layoff and reemployment to 10 performance record and seniority in service; 11 (14) For establishment of a plan for resolving employee grievances 12 and complaints; 13 (15) For holidays, for attendance regulations in the various classes 14 of positions in the classified service, and for annual, sick, and special 15 leaves of absence, with or without pay or at reduced pay; 16 (16) For the development of employee morale, safety, and training 17 programs; 18 (17) For a procedure whereby an appointing authority may suspend, 19 reduce, demote, or dismiss an employee for misconduct, inefficiency, 20 incompetence, insubordination, malfeasance, or other unfitness to render 21 effective service and for the investigation and public hearing of appeals 22 of such suspended, reduced, demoted, or dismissed employee; 23 (18) For granting of leave without pay to a permanent employee to 24 accept a position in the unclassified service and for his or her return 25 to a position comparable to that formerly held in the classified service 26 at the conclusion of such service; 27 (19) For regulation covering political activity of employees in the 28 classified service; and 29 (20) For other rules and regulations not inconsistent with sections 30 23-2534 to 23-2544 and the implementation of personnel policy in the 31 LB586 2015 LB586 2015 -11- county. 1 Sec. 5. Section 29-401, Revised Statutes Cumulative Supplement, 2 2014, is amended to read: 3 29-401 Every sheriff, deputy sheriff, marshal, deputy marshal, 4 security guard, police officer, or peace officer as defined in 5 subdivision (15) of section 49-801 shall arrest and detain any person 6 found violating any law of this state or any legal ordinance of any city 7 or incorporated village until a legal warrant can be obtained, except 8 that (1) any such law enforcement officer taking a juvenile under the age 9 of eighteen years into his or her custody for any violation herein 10 defined shall proceed as set forth in sections 43-248, 43-248.01, 43-250, 11 43-251, 43-251.01, and 43-253 and (2) the court in which the juvenile is 12 to appear shall not accept a plea from the juvenile until finding that 13 the parents of the juvenile have been notified or that reasonable efforts 14 to notify such parents have been made as provided in section 43-250. 15 Sec. 6. Section 48-215, Reissue Revised Statutes of Nebraska, is 16 amended to read: 17 48-215 It shall be unlawful for any person, firm, or corporation, 18 engaged to any extent whatsoever in the State of Nebraska in the 19 production, manufacture, or distribution of military or naval material, 20 equipment, or supplies for the State of Nebraska or the government of the 21 United States, to refuse to employ any person in any capacity, if such 22 said person is a citizen and is qualified, on account of the race, color, 23 creed, religion, sex, disability, or national origin, sexual orientation, 24 or gender identity of such said person. 25 Sec. 7. Section 48-628.01, Reissue Revised Statutes of Nebraska, is 26 amended to read: 27 48-628.01 Good cause for voluntarily leaving employment shall 28 include, but not be limited to, the following reasons: 29 (1) An individual has made all reasonable efforts to preserve the 30 employment but voluntarily leaves his or her work for the necessary 31 LB586 2015 LB586 2015 -12- purpose of escaping abuse at the place of employment or abuse as defined 1 in section 42-903 between household members; 2 (2) An individual left his or her employment voluntarily due to a 3 bona fide non-work-connected illness or injury that prevented him or her 4 from continuing the employment or from continuing the employment without 5 undue risk of harm to the individual; 6 (3) An individual left his or her employment to accompany his or her 7 spouse to the spouse's employment in a different city or new military 8 duty station; 9 (4) An individual left his or her employment because his or her 10 employer required the employee to relocate; 11 (5)(a) An individual is a construction worker and left his or her 12 employment voluntarily for the purpose of accepting previously secured 13 insured work in the construction industry if the commissioner finds that: 14 (i)(A) The quit occurred within thirty days immediately prior to the 15 established termination date of the job which the individual voluntarily 16 leaves, (B) the specific starting date of the new job is prior to the 17 established termination date of the job which the worker quits, (C) the 18 new job offered employment for a longer period of time than remained 19 available on the job which the construction worker voluntarily quit, and 20 (D) the worker had worked at least twenty days or more at the new job 21 after the established termination date of the previous job unless the new 22 job was terminated by a contract cancellation; or 23 (ii)(A) The construction worksite of the job which the worker quit 24 was more than fifty miles from his or her place of residence, (B) the new 25 construction job was fifty or more miles closer to his or her residence 26 than the job which he or she quit, and (C) the worker actually worked 27 twenty days or more at the new job unless the new job was terminated by a 28 contract cancellation. 29 (b) The provisions of this subdivision (5) shall not apply if the 30 individual is separated from the new job under conditions resulting in a 31 LB586 2015 LB586 2015 -13- disqualification from benefits under subdivision (1) or (2) of section 1 48-628; 2 (6) An individual accepted a voluntary layoff to avoid bumping 3 another worker; 4 (7) An individual left his or her employment as a result of being 5 directed to perform an illegal act; 6 (8) An individual left his or her employment because of unlawful 7 discrimination or workplace harassment on the basis of race, sex, sexual 8 orientation, gender identity, or age; 9 (9) An individual left his or her employment because of unsafe 10 working conditions; or 11 (10) Equity and good conscience demand a finding of good cause. 12 Sec. 8. Section 48-1101, Reissue Revised Statutes of Nebraska, is 13 amended to read: 14 48-1101 It is the policy of this state to foster the employment of 15 all employable persons in the state on the basis of merit regardless of 16 their race, color, religion, sex, disability, or national origin, sexual 17 orientation, or gender identity and to safeguard their right to obtain 18 and hold employment without discrimination because of their race, color, 19 religion, sex, disability, or national origin, sexual orientation, or 20 gender identity. Denying equal opportunity for employment because of 21 race, color, religion, sex, disability, or national origin, sexual 22 orientation, or gender identity is contrary to the principles of freedom 23 and is a burden on the objectives of the public policy of this state. The 24 policy of this state does not require any person to employ an applicant 25 for employment because of his or her race, color, religion, sex, 26 disability, or national origin, sexual orientation, or gender identity, 27 and the policy of this state does not require any employer, employment 28 agency, labor organization, or joint labor-management committee to grant 29 preferential treatment to any individual or to any group because of race, 30 color, religion, sex, disability, or national origin, sexual orientation, 31 LB586 2015 LB586 2015 -14- or gender identity. 1 It is the public policy of this state that all people in Nebraska, 2 both with and without disabilities, shall have the right and opportunity 3 to enjoy the benefits of living, working, and recreating within this 4 state. It is the intent of the Legislature that state and local 5 governments, Nebraska businesses, Nebraska labor organizations, and 6 Nebraskans with disabilities understand their rights and responsibilities 7 under the law regarding employment discrimination and the prevention of 8 discrimination on the basis of disability. 9 Sec. 9. Section 48-1104, Reissue Revised Statutes of Nebraska, is 10 amended to read: 11 48-1104 It shall be an unlawful employment practice for an employer: 12 (1) To fail or refuse to hire, to discharge, or to harass any 13 individual, or otherwise to discriminate against any individual with 14 respect to compensation, terms, conditions, or privileges of employment, 15 because of such individual's race, color, religion, sex, disability, 16 marital status, or national origin, sexual orientation, or gender 17 identity; or 18 (2) To limit, advertise, solicit, segregate, or classify employees 19 in any way which would deprive or tend to deprive any individual of 20 employment opportunities or otherwise adversely affect such individual's 21 status as an employee, because of such individual's race, color, 22 religion, sex, disability, marital status, or national origin, sexual 23 orientation, or gender identity. 24 Sec. 10. Section 48-1105, Reissue Revised Statutes of Nebraska, is 25 amended to read: 26 48-1105 It shall be an unlawful employment practice for an 27 employment agency to fail or refuse to refer for employment, or otherwise 28 to discriminate against, any individual because of race, color, religion, 29 sex, disability, marital status, or national origin, sexual orientation, 30 or gender identity or to classify or refer for employment any individual 31 LB586 2015 LB586 2015 -15- on the basis of race, color, religion, sex, disability, marital status, 1 or national origin, sexual orientation, or gender identity. 2 Sec. 11. Section 48-1106, Reissue Revised Statutes of Nebraska, is 3 amended to read: 4 48-1106 It shall be an unlawful employment practice for a labor 5 organization: 6 (1) To exclude or to expel from its membership, or otherwise to 7 discriminate against, any individual because of race, color, religion, 8 sex, disability, marital status, or national origin, sexual orientation, 9 or gender identity; 10 (2) To limit, segregate, or classify its membership, or to classify 11 or fail or refuse to refer for employment any individual, in any way 12 which would deprive or tend to deprive any individual of employment 13 opportunities, or would limit such employment opportunities or otherwise 14 adversely affect such individual's status as an employee or as an 15 applicant for employment, because of such individual's race, color, 16 religion, sex, disability, marital status, or national origin, sexual 17 orientation, or gender identity; or 18 (3) To cause or attempt to cause an employer to discriminate against 19 an individual in violation of this section. 20 Sec. 12. Section 48-1107, Reissue Revised Statutes of Nebraska, is 21 amended to read: 22 48-1107 It shall be an unlawful employment practice for any 23 employer, labor organization, or joint labor-management committee 24 controlling apprenticeship or other training or retraining, including on- 25 the-job training programs to discriminate against any individual because 26 of race, color, religion, sex, disability, marital status, or national 27 origin, sexual orientation, or gender identity in admission to, or 28 employment in, any program established to provide apprenticeship or other 29 training. 30 Sec. 13. Section 48-1111, Reissue Revised Statutes of Nebraska, is 31 LB586 2015 LB586 2015 -16- amended to read: 1 48-1111 (1) Except as otherwise provided in the Nebraska Fair 2 Employment Practice Act, it shall not be an unlawful employment practice 3 for an employer to apply different standards of compensation, or 4 different terms, conditions, or privileges of employment pursuant to a 5 bona fide seniority or merit system or a system which measures earnings 6 by quantity or quality of production or to employees who work in 7 different locations, if such differences are not the result of an 8 intention to discriminate because of race, color, religion, sex, 9 disability, marital status, or national origin, sexual orientation, or 10 gender identity nor shall it be an unlawful employment practice for an 11 employer to give and to act upon the results of any professionally 12 developed ability test if such test, its administration, or action upon 13 the results is not designed, intended, or used to discriminate because of 14 race, color, religion, sex, disability, marital status, or national 15 origin, sexual orientation, or gender identity. 16 It shall not be an unlawful employment practice for a covered entity 17 to deny privileges of employment to an individual with a disability when 18 the qualification standards, tests, or selection criteria that screen out 19 or tend to screen out or otherwise deny a job or benefit to an individual 20 with a disability: 21 (a) Have been shown to be job-related and consistent with business 22 necessity and such performance cannot be accomplished by reasonable 23 accommodation, as required by the Nebraska Fair Employment Practice Act 24 and the federal Americans with Disabilities Act of 1990; or 25 (b) Include a requirement that an individual shall not pose a direct 26 threat, involving a significant risk to the health or safety of other 27 individuals in the workplace, that cannot be eliminated by reasonable 28 accommodation. 29 It shall not be an unlawful employment practice to refuse employment 30 based on a policy of not employing both husband and wife if such policy 31 LB586 2015 LB586 2015 -17- is equally applied to both sexes. 1 (2) Women affected by pregnancy, childbirth, or related medical 2 conditions shall be treated the same for all employment-related purposes, 3 including receipt of employee benefits, as other persons not so affected 4 but similar in their ability or inability to work, and nothing in this 5 section shall be interpreted to provide otherwise. 6 This section shall not require an employer to provide employee 7 benefits for abortion except when medical complications have arisen from 8 an abortion. 9 Nothing in this section shall preclude an employer from providing 10 employee benefits for abortion under fringe benefit programs or otherwise 11 affect bargaining agreements in regard to abortion. 12 Sec. 14. Section 48-1113, Reissue Revised Statutes of Nebraska, is 13 amended to read: 14 48-1113 Nothing in the Nebraska Fair Employment Practice Act shall 15 be interpreted to require any employer, employment agency, labor 16 organization, or joint labor-management committee subject to the act to 17 grant preferential treatment to any individual or to any group because of 18 the race, color, religion, sex, disability, marital status, or national 19 origin, sexual orientation, or gender identity of such individual or 20 group on account of an imbalance which may exist with respect to the 21 total number or percentage of persons of any race, color, religion, sex, 22 disability, marital status, or national origin, sexual orientation, or 23 gender identity employed by any employer, referred or classified for 24 employment by any employment agency or labor organization, admitted to 25 membership or classified by any labor organization, or admitted to, or 26 employed in, any apprenticeship or other training program, in comparison 27 with the total number or percentage of persons of such race, color, 28 religion, sex, disability, marital status, or national origin, sexual 29 orientation, or gender identity in any community, section, or other area, 30 or in the available work force in any community, section, or other area. 31 LB586 2015 LB586 2015 -18- Sec. 15. Section 48-1115, Reissue Revised Statutes of Nebraska, is 1 amended to read: 2 48-1115 It shall be an unlawful employment practice for an employer, 3 labor organization, or employment agency to print or publish or cause to 4 be printed or published any notice or advertisement relating to 5 employment by such an employer or membership in or any classification or 6 referral for employment by such a labor organization, or relating to any 7 classification or referral for employment by such an employment agency, 8 indicating any preference, limitation, specification, or discrimination 9 based on race, color, religion, sex, disability, marital status, or 10 national origin, sexual orientation, or gender identity, except that such 11 a notice or advertisement may indicate a preference, limitation, 12 specification or discrimination based on religion, sex, disability, 13 marital status, or national origin when religion, sex, disability, 14 marital status, or national origin is a bona fide occupational 15 qualification for employment. 16 Sec. 16. Section 48-1117, Revised Statutes Cumulative Supplement, 17 2014, is amended to read: 18 48-1117 The commission shall have the following powers and duties: 19 (1) To receive, investigate, and pass upon charges of unlawful 20 employment practices anywhere in the state; 21 (2) To hold hearings, subpoena witnesses, compel their attendance, 22 administer oaths, and take the testimony of any person under oath and, in 23 connection therewith, to require the production for examination of any 24 books and papers relevant to any allegation of unlawful employment 25 practice pending before the commission. The commission may make rules as 26 to the issuance of subpoenas, subject to the approval by a constitutional 27 majority of the elected members of the Legislature; 28 (3) To cooperate with the federal government and with local agencies 29 to effectuate the purposes of the Nebraska Fair Employment Practice Act, 30 including the sharing of information possessed by the commission on a 31 LB586 2015 LB586 2015 -19- case that has also been filed with the federal government or local 1 agencies if both the employer and complainant have been notified of the 2 filing; 3 (4) To attempt to eliminate unlawful unfair employment practices by 4 means of conference, mediation, conciliation, arbitration, and 5 persuasion; 6 (5) To require that every employer, employment agency, and labor 7 organization subject to the act shall (a) make and keep such records 8 relevant to the determinations of whether unlawful employment practices 9 have been or are being committed, (b) preserve such records for such 10 periods, and (c) make such reports therefrom, as the commission shall 11 prescribe by regulation or order, after public hearing, as reasonable, 12 necessary, or appropriate for the enforcement of the act or the 13 regulations or orders thereunder. The commission shall, by regulation, 14 require each employer, labor organization, and joint labor-management 15 committee subject to the act which controls an apprenticeship or other 16 training program to maintain such records as are reasonably necessary to 17 carry out the purposes of the act, including, but not limited to, a list 18 of applicants who wish to participate in such program, including the 19 chronological order in which such applications were received, and to 20 furnish to the commission, upon request, a detailed description of the 21 manner in which persons are selected to participate in the apprenticeship 22 or other training program. Any employer, employment agency, labor 23 organization, or joint labor-management committee which believes that the 24 application to it of any regulation or order issued under this section 25 would result in undue hardship may either apply to the commission for an 26 exemption from the application of such regulation or order or bring a 27 civil action in the district court for the district where such records 28 are kept. If the commission or the court, as the case may be, finds that 29 the application of the regulation or order to the employer, employment 30 agency, or labor organization in question would impose an undue hardship, 31 LB586 2015 LB586 2015 -20- the commission or the court, as the case may be, may grant appropriate 1 relief; 2 (6) To report, not less than once every two years, to the Clerk of 3 the Legislature and the Governor, on the hearings it has conducted and 4 the decisions it has rendered, the other work performed by it to carry 5 out the purposes of the act, and to make recommendations for such further 6 legislation concerning abuses and discrimination because of race, color, 7 religion, sex, disability, marital status, or national origin, sexual 8 orientation, or gender identity, as may be desirable. The report 9 submitted to the Clerk of the Legislature shall be submitted 10 electronically. Each member of the Legislature shall receive an 11 electronic copy of the report required by this subdivision by making a 12 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, Reissue Revised Statutes of Nebraska, is 16 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 LB586 2015 LB586 2015 -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 by, or inquiry by, 9 or hearing before the commission when ordered to do so, upon the ground 10 that the testimony or evidence, book, document, paper, or account 11 required of such person may tend to incriminate such person in or subject 12 such person to penalty or forfeiture; but no person shall be prosecuted, 13 punished, or subjected to any forfeiture or penalty for or on account of 14 any act, transaction, matter, or thing concerning which such person shall 15 have been compelled under oath to testify or produce documentary 16 evidence, except that no person so testifying shall be exempt from 17 prosecution or punishment for any perjury committed by such person in his 18 or her testimony. Such immunity shall extend only to a natural person 19 who, in obedience to a subpoena, gives testimony under oath or produces 20 evidence, documentary or otherwise, under oath. Nothing in this 21 subsection shall be construed as precluding any person from claiming any 22 right or privilege available to such person under the fifth amendment to 23 the Constitution of the United States. 24 (3) After the conclusion of the hearing, the commission shall, 25 within ten days after of the receipt of the transcript or the receipt of 26 the recommendations from the hearing officer, make and file its findings 27 of fact and conclusions of law and make and enter an appropriate order. 28 The 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 LB586 2015 LB586 2015 -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, the commission it shall issue and cause to be served 5 on such respondent an order requiring such respondent to cease and desist 6 from such unlawful employment practice and order such other affirmative 7 action as may be appropriate which may include, but shall not be limited 8 to, reinstatement or hiring of employees, with or without backpay. 9 Backpay liability shall not accrue from a date more than two years prior 10 to the filing of the charge with the commission. Interim earnings or 11 amounts earnable with reasonable diligence by the person or persons 12 discriminated against shall operate to reduce the backpay otherwise 13 allowable. 14 (4) A complainant who has suffered physical, emotional, or financial 15 harm as a result of a violation of section 48-1104 or 48-1114 may, at any 16 stage of the proceedings prior to dismissal, file an action directly in 17 the district court of the county where such alleged violation occurred. 18 If the complainant files a district court action on the charge, the 19 complainant shall provide written notice of such filing to the 20 commission, and such notification shall immediately terminate all 21 proceedings before the commission. The district court shall docket and 22 try such case as any other civil action, and any successful complainant 23 shall be entitled to appropriate relief, including temporary or permanent 24 injunctive relief, general and special damages, reasonable attorney's 25 fees, and costs. 26 (5) No order of the commission shall require the admission or 27 reinstatement of an individual as a member of a labor organization or the 28 hiring, reinstatement, or promotion of an individual as an employee, or 29 the payment to him or her of any backpay, if such individual was refused 30 admission, suspended, or expelled, or was refused employment or 31 LB586 2015 LB586 2015 -23- advancement or was suspended or discharged for any reason other than 1 discrimination on account of race, color, religion, sex, disability, 2 marital status, or national origin, sexual orientation, or gender 3 identity or in violation of section 48-1114. If the commission finds that 4 a respondent has not engaged in any unlawful unfair employment practice, 5 it shall within thirty days state its findings of fact and conclusions of 6 law. A copy of any order shall be served upon the person against whom it 7 runs or his or her attorney and notice thereof shall be given to the 8 other parties to the proceedings or their attorneys. Such order shall 9 take effect twenty days after service thereof unless otherwise provided 10 and shall continue in force either for a period which may be designated 11 therein or until changed or revoked by the commission. 12 (6) Except as provided in subsection (4) of this section, until a 13 transcript of the record of the proceedings is filed in the district 14 court as provided in section 48-1120, the commission may, at any time 15 upon reasonable notice and in such a manner it shall deem proper, modify 16 or set aside, in whole or in part, any finding or order made by it. 17 Sec. 18. Section 48-1122, Reissue Revised Statutes of Nebraska, is 18 amended to read: 19 48-1122 Every contract to which the state or any of its political 20 subdivisions is a party shall contain a provision requiring the 21 contractor and his or her subcontractors not to discriminate against any 22 employee or applicant for employment, to be employed in the performance 23 of such contract, with respect to his or her hire, tenure, terms, 24 conditions, or privileges of employment, because of his or her race, 25 color, religion, sex, disability, or national origin, sexual orientation, 26 or gender identity. 27 Sec. 19. Section 48-1124, Reissue Revised Statutes of Nebraska, is 28 amended to read: 29 48-1124 Nothing contained in the Nebraska Fair Employment Practice 30 Act shall be deemed to repeal any of the provisions of the civil rights 31 LB586 2015 LB586 2015 -24- law, any other law of this state, or any municipal ordinance relating to 1 discrimination because of race, creed, color, religion, sex, disability, 2 or national origin, sexual orientation, or gender identity. 3 Sec. 20. Section 49-801, Reissue Revised Statutes of Nebraska, is 4 amended to read: 5 49-801 Unless the context is shown to intend otherwise, words and 6 phrases in the statutes of Nebraska hereafter enacted are used in the 7 following sense: 8 (1) Acquire when used in connection with a grant of power or 9 property right to any person shall include the purchase, grant, gift, 10 devise, bequest, and obtaining by eminent domain; 11 (2) Action shall include any proceeding in any court of this state; 12 (3) Attorney shall mean attorney at law; 13 (4) Company shall include any corporation, partnership, limited 14 liability company, joint-stock company, joint venture, or association; 15 (5) Domestic when applied to corporations shall mean all those 16 created by authority of this state; 17 (6) Federal shall refer to the United States; 18 (7) Foreign when applied to corporations shall include all those 19 created by authority other than that of this state; 20 (8) Gender identity shall mean the actual or perceived appearance, 21 expression, identity, or behavior of an individual, whether or not that 22 appearance, expression, identity, or behavior is different from the 23 individual's assigned sex at birth; 24 (9 8) Grantee shall include every person to whom any estate or 25 interest passes in or by any conveyance; 26 (10 9) Grantor shall include every person from or by whom any estate 27 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 shall include lands, tenements, and 31 LB586 2015 LB586 2015 -25- hereditaments and all rights thereto and interest therein other than a 1 chattel interest; 2 (13 12) Magistrate shall include judge of the county court and clerk 3 magistrate; 4 (14 13) Month shall mean calendar month; 5 (15 14) Oath shall include affirmation in all cases in which an 6 affirmation may be substituted for an oath; 7 (16 15) Peace officer shall include sheriffs, coroners, jailers, 8 marshals, police officers, state highway patrol officers, members of the 9 National Guard on active service by direction of the Governor during 10 periods of emergency, and all other persons with similar authority to 11 make arrests; 12 (17 16) Person shall include bodies politic and corporate, 13 societies, communities, the public generally, individuals, partnerships, 14 limited liability companies, joint-stock companies, and associations; 15 (18 17) Personal estate shall include money, goods, chattels, 16 claims, and evidences of debt; 17 (19 18) Process shall mean a summons, subpoena, or notice to appear 18 issued out of a court in the course of judicial proceedings; 19 (20 19) Service animal shall have the same meaning as in 28 C.F.R. 20 36.104, as such regulation existed on January 1, 2008; 21 (21) Sexual orientation means actual or perceived homosexuality, 22 heterosexuality, or bisexuality; 23 (22 20) State when applied to different states of the United States 24 shall be construed to extend to and include the District of Columbia and 25 the several territories organized by Congress; 26 (23 21) Sworn shall include affirmed in all cases in which an 27 affirmation may be substituted for an oath; 28 (24 22) The United States shall include territories, outlying 29 possessions, and the District of Columbia; 30 (25 23) Violate shall include failure to comply with; 31 LB586 2015 LB586 2015 -26- (26 24) Writ shall signify an order or citation in writing issued in 1 the name of the state out of a court or by a judicial officer; and 2 (27 25) Year shall mean calendar year. 3 Sec. 21. Section 81-1355, Reissue Revised Statutes of Nebraska, is 4 amended to read: 5 81-1355 It is declared to be in the best interest of the State of 6 Nebraska to insure that historic and any present patterns of sex and 7 racial discrimination are eliminated and that each agency pursue a course 8 of action in all areas of its operation to insure that all citizens are 9 provided with fair and equal opportunities for employment and advancement 10 regardless of race, color, religion, national origin, sexual orientation, 11 gender identity, age, sex, marital status, or physical or mental 12 disability. 13 Affirmative action shall be taken to insure the implementation of a 14 policy in state government employment which provides equal employment 15 opportunity. Such policy shall apply to: 16 (1) Hiring, placement, upgrading, transfer, or demotion of 17 employees; 18 (2) Recruitment, advertising, or solicitation for employment; 19 (3) Treatment during employment; 20 (4) Rates of pay or other forms of compensation; 21 (5) Selection for training; 22 (6) Layoff, termination, or reinstatement; and 23 (7) Any other terms or conditions of employment. 24 Sec. 22. Section 81-1356, Reissue Revised Statutes of Nebraska, is 25 amended to read: 26 81-1356 As used in sections 81-1355 to 81-1368, unless the context 27 otherwise requires: 28 (1) Equal employment opportunity shall mean the right of all persons 29 to work and to advance on the basis of merit and ability without regard 30 to race, color, religion, national origin, sexual orientation, gender 31 LB586 2015 LB586 2015 -27- identity, age, sex, marital status, or physical or mental disability; 1 (2) Affirmative action shall mean a deliberate and sustained effort 2 to identify and eliminate barriers to employment and advancement which 3 may discriminate against various groups. Particular emphasis shall be 4 focused on racial minorities, women, and the disabled but not to the 5 exclusion of the criteria set forth in subdivision (1) of this section. 6 The ultimate goal is to achieve, at all levels, a state government work 7 force which is representative of the state working population. The 8 composition of the state working population shall be determined annually 9 through reports of the Department of Labor. Such a goal is to be an 10 integral part of every aspect of personnel policy; 11 (3) Office shall mean the Affirmative Action Office; 12 (4) Program shall mean the Affirmative Action Program; 13 (5) Agency shall mean each department, agency, office, board, 14 commission, and committee of the State of Nebraska under the executive 15 authority of the Governor; 16 (6) Plan shall mean the Affirmative Action Plan prepared by the 17 individual agencies; and 18 (7) Administrator shall mean the Affirmative Action Administrator. 19 Sec. 23. Original sections 18-1724, 23-2525, 23-2531, 23-2541, 20 48-215, 48-628.01, 48-1101, 48-1104, 48-1105, 48-1106, 48-1107, 48-1111, 21 48-1113, 48-1115, 48-1119, 48-1122, 48-1124, 49-801, 81-1355, and 22 81-1356, Reissue Revised Statutes of Nebraska, and sections 29-401 and 23 48-1117, Revised Statutes Cumulative Supplement, 2014, are repealed. 24 LB586 2015 LB586 2015 -28-