Text of UT HB 89 (2008)

H.B. 89 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: P. Owen 6 6 12-20-07 7:05 AM 6 H.B. 89 *HB0089* 1 ANTIDISCRIMINATION ACT AMENDMENTS 2 2008 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Christine A. Johnson 5 Senate Sponsor: ____________ 6 7 LONG TITLE 8 General Description: 9 This bill modifies the Utah Antidiscrimination Act to address discrimination on the 10 basis of sexual orientation or gender identity. 11 Highlighted Provisions: 12 This bill: 13 < defines "gender identity" and "sexual orientation"; 14 < includes sexual orientation and gender identity as a prohibited basis for 15 discrimination in employment in a manner consistent with the Utah 16 Antidiscrimination Act; 17 < addresses advertisements; 18 < prohibits quotas or preferences on the basis of sexual orientation or gender identity; 19 and 20 < makes technical and conforming amendments. 21 Monies Appropriated in this Bill: 22 None 23 Other Special Clauses: 24 None 25 Utah Code Sections Affected: 26 AMENDS: 27 34A-5-102, as last amended by Laws of Utah 2001, Chapter 73 H.B. 89 12-20-07 7:05 AM 28 34A-5-104, as last amended by Laws of Utah 1999, Chapter 161 29 34A-5-105, as last amended by Laws of Utah 2003, Chapter 65 30 34A-5-106, as last amended by Laws of Utah 2003, Chapter 65 31 34A-5-107, as last amended by Laws of Utah 2003, Chapter 65 32 67-19-6.3, as last amended by Laws of Utah 2006, Chapter 139 33 34 Be it enacted by the Legislature of the state of Utah: 35 Section 1. Section 34A-5-102 is amended to read: 36 34A-5-102. Definitions. 37 As used in this chapter: 38 (1) "Apprenticeship" means a program for the training of [apprentices] an apprentice, 39 including a program providing the training of [those persons] a person defined as [apprentices] 40 an apprentice by Section 35A-6-102. 41 (2) "Bona fide occupational qualification" means a characteristic applying to an 42 employee: 43 (a) that is necessary to the operation of the employee's employer's business; or 44 (b) is the essence of the employee's employer's business. 45 (3) "Court" means: 46 (a) the district court in the judicial district of the state in which the asserted unfair 47 employment practice [occurred] occurs; or 48 (b) if [this court] the district court described in Subsection (3)(a) is not in session at 49 [that] the time the asserted unfair employment practice occurs, a judge of the court described in 50 Subsection (3)(a). 51 (4) "Director" means the director of the division. 52 (5) "Disability" means a physical or mental disability as defined and covered by the 53 Americans with Disabilities Act of 1990, 42 U.S.C. 12102. 54 (6) "Discriminate in matters of compensation" means the payment of differing wages 55 or salaries to employees having substantially equal experience, responsibilities, and skill for a 56 particular job. 57 [(6)] (7) "Division" means the Division of Antidiscrimination and Labor. 58 [(7)] (8) "Employee" means [any] a person applying with or employed by an employer. - 2 - 12-20-07 7:05 AM H.B. 89 59 [(8)] (9) (a) "Employer" means: 60 (i) the state; 61 (ii) [any] a political subdivision; 62 (iii) a board, commission, department, institution, school district, trust, or agent of: 63 (A) the state; or [its] 64 (B) a political [subdivisions] subdivision; or 65 (iv) a person employing 15 or more employees within the state for each working day 66 in each of 20 calendar weeks or more in the current or preceding calendar year. 67 (b) "Employer" does not include: 68 (i) a religious organization or association; 69 (ii) a religious corporation sole; or 70 (iii) [any] a corporation or association constituting a wholly owned subsidiary or 71 agency of [any]: 72 (A) a religious organization or association; or 73 (B) a religious corporation sole. 74 [(9)] (10) "Employment agency" means [any] a person: 75 (a) undertaking to procure [employees or opportunities] an employer or an opportunity 76 to work for [any other] another person; or 77 (b) holding itself out to be equipped to take an action described in Subsection [(9)] 78 (10)(a). 79 (11) "Gender identity" means a person's self-perception, or the perception by another 80 person, of the person's identity as a male or female: 81 (a) on the basis of the person's appearance, behavior, or physical characteristics; and 82 (b) whether or not it is different than the person's: 83 (i) physical anatomy; or 84 (ii) designated sex at birth. 85 [(10)] (12) "Joint apprenticeship committee" means [any] an association of the 86 following that provides, coordinates, or controls an apprentice training program: 87 (a) representatives of a labor organization; and 88 (b) an employer [providing, coordinating, or controlling an apprentice training 89 program]. - 3 - H.B. 89 12-20-07 7:05 AM 90 [(11)] (13) "Labor organization" means [any] an organization that exists for the 91 purpose in whole or in part of: 92 (a) collective bargaining; 93 (b) dealing with [employers] an employer concerning: 94 (i) grievances[,]; or 95 (ii) terms or conditions of employment; or 96 (c) other mutual aid or protection in connection with employment. 97 [(12)] (14) "National origin" means the place of birth, domicile, or residence of an 98 individual or of an individual's ancestors. 99 [(13)] (15) "On-the-job-training program" means [any] a program designed to instruct a 100 person who, while learning the particular job for which the person is receiving instruction: 101 (a) is also employed at that job; or 102 (b) may be employed by the employer conducting the program: 103 (i) during the course of the program[,]; or 104 (ii) when the program is completed. 105 [(14)] (16) "Person" means [one or more individuals, partnerships, associations, 106 corporations, legal representatives, trusts or trustees, receivers, the state and all political 107 subdivisions and agencies of the state.]: 108 (a) an individual; 109 (b) a partnership; 110 (c) an association; 111 (d) a corporation; 112 (e) a legal representative; 113 (f) a trust or trustee; 114 (g) a receiver; 115 (h) the state; 116 (i) a political subdivision; and 117 (j) an agency of the state. 118 [(15)] (17) "Presiding officer" [means the same as that term] is as defined in Section 119 63-46b-2. 120 [(16)] (18) "Prohibited employment practice" means a practice specified as - 4 - 12-20-07 7:05 AM H.B. 89 121 discriminatory, and therefore unlawful, in Section 34A-5-106. 122 (19) "Religious educational institution" means a school, college, university, or other 123 educational institution that: 124 (a) is, in whole or in substantial part, owned, supported, controlled, or managed by a 125 particular religious corporation, association, or society; or 126 (b) has a curriculum that is directed toward the propagation of a particular religion. 127 [(17)] (20) "Retaliate" means the taking of adverse action: 128 (a) by: 129 (i) an employer[,]; 130 (ii) an employment agency[,]; 131 (iii) a labor organization[,]; 132 (iv) an apprenticeship program[,]; 133 (v) an on-the-job training program[,]; or 134 (vi) a vocational school [against one of its employees, applicants, or members]; 135 (b) against an employee, applicant, or member of a person described in Subsection 136 (20)(a); and 137 (c) because the employee, applicant, or member described in Subsection (20)(b): 138 [(a) has opposed any] (i) opposes an employment practice prohibited under this 139 chapter; or 140 [(b) filed charges, testified, assisted, or participated] 141 (ii) files charges, testifies, assists, or participates in any way in [any] a proceeding, 142 investigation, or hearing under this chapter. 143 (21) "Sexual orientation" means: 144 (a) a person's: 145 (i) bisexuality; 146 (ii) heterosexuality; or 147 (iii) homosexuality; or 148 (b) that the person is perceived by another person to be: 149 (i) bisexual; 150 (ii) heterosexual; or 151 (iii) homosexual. - 5 - H.B. 89 12-20-07 7:05 AM 152 [(18)] (22) "Vocational school" means [any] a school or institution conducting a course 153 of instruction, training, or retraining to prepare [individuals] an individual to: 154 (a) follow an occupation or trade[,]; or [to] 155 (b) pursue a manual, technical, industrial, business, commercial, office, personal 156 services, or other nonprofessional [occupations] occupation. 157 Section 2. Section 34A-5-104 is amended to read: 158 34A-5-104. Powers. 159 (1) (a) The commission has jurisdiction over the subject of employment practices and 160 discrimination made unlawful by this chapter. 161 (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and 162 for the enforcement of this chapter. 163 (2) The division may: 164 (a) appoint and prescribe the duties of [investigators and other employees and agents 165 that it] an investigator or other employee or agent that the division considers necessary for the 166 enforcement of this chapter; 167 (b) receive, reject, investigate, and pass upon [complaints] a complaint alleging: 168 (i) discrimination in: 169 (A) employment; 170 (B) an apprenticeship [programs] program; 171 (C) an on-the-job training [programs; and] program; or 172 (D) a vocational [schools] school; or 173 (ii) the existence of a discriminatory or prohibited employment practice by: 174 (A) a person; 175 (B) an employer; 176 (C) an employment agency; 177 (D) a labor organization; 178 (E) [the employees or members] an employee or member of an employment agency or 179 labor organization; 180 (F) a joint apprenticeship committee; and 181 (G) a vocational school; 182 (c) investigate and study the existence, character, causes, and extent of discrimination - 6 - 12-20-07 7:05 AM H.B. 89 183 in employment, an apprenticeship [programs,] program, an on-the-job training [programs, and] 184 program, or a vocational [schools] school in this state by one or more of the following: 185 (i) employers; 186 (ii) employment agencies; 187 (iii) labor organizations; 188 (iv) joint apprenticeship committees; and 189 (v) vocational schools; 190 (d) formulate one or more plans for the elimination of discrimination by educational or 191 other means; 192 (e) hold [hearings] a hearing upon a complaint made against: 193 (i) a person; 194 (ii) an employer; 195 (iii) an employment agency; 196 (iv) a labor organization; 197 (v) [the employees or members] an employee or member of an employment agency or 198 labor organization; 199 (vi) a joint apprenticeship committee; or 200 (vii) a vocational school; 201 (f) issue one or more publications [and] or reports of investigations and research that: 202 (i) promote good will among the various racial, religious, and ethnic groups of the 203 state; and 204 (ii) minimize or eliminate discrimination in employment [because] on the basis of race, 205 color, sex, religion, national origin, age, [or] disability, sexual orientation, or gender identity; 206 (g) prepare and transmit to the governor, at least once each year, [reports] a report 207 describing: 208 (i) [its] the division's proceedings, investigations, and hearings; 209 (ii) the outcome of [those hearings] a hearing described in Subsection (2)(g)(i); 210 (iii) decisions the division [has rendered] renders; and 211 (iv) the other work performed by the division; 212 (h) recommend one or more policies to the governor, and submit [recommendation] 213 one or more recommendations to employers, employment agencies, and labor organizations to - 7 - H.B. 89 12-20-07 7:05 AM 214 implement those policies; 215 (i) recommend [any] legislation concerning discrimination [because] on the basis of 216 race, sex, color, national origin, religion, age, [or] disability, sexual orientation, or gender 217 identity to the governor that [it] the division considers necessary; and 218 (j) within the limits of [any] appropriations made for [its] the division's operation, 219 cooperate with other agencies or organizations, both public and private, in the planning and 220 conducting of educational programs designed to eliminate discriminatory practices prohibited 221 under this chapter. 222 (3) The division shall investigate an alleged discriminatory [practices] practice 223 involving [officers or employees] an officer or employee of state government if requested to do 224 so by the Career Service Review Board. 225 (4) (a) In [any] a hearing held under this chapter, the division may: 226 (i) subpoena [witnesses] a witness and compel [their] the witness' attendance at the 227 hearing; 228 (ii) administer [oaths] an oath and take the testimony of [any] a person under oath; and 229 (iii) compel [any] a person to produce for examination [any books, papers,] a book, 230 paper, or other information relating to the matters raised by the complaint. 231 (b) The division director or a hearing examiner appointed by the division director may 232 conduct [hearings] a hearing. 233 (c) If a witness fails or refuses to obey a subpoena issued by the division, the division 234 may petition the district court to enforce the subpoena. 235 (d) [In the event] If a witness asserts a privilege against self-incrimination, testimony 236 and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of 237 Immunity. 238 Section 3. Section 34A-5-105 is amended to read: 239 34A-5-105. Antidiscrimination and Labor Advisory Council -- Membership -- 240 Appointment -- Term -- Powers and duties -- Chair. 241 (1) There is created in the commission an Antidiscrimination and Labor Advisory 242 Council consisting of: 243 (a) 13 voting members appointed by the commissioner as follows: 244 (i) three employer representatives; - 8 - 12-20-07 7:05 AM H.B. 89 245 (ii) three employee representatives; 246 (iii) two representatives of persons who seek to rent or purchase dwellings as defined 247 in Section 57-21-2; 248 (iv) two representatives of persons who: 249 (A) sell or rent dwellings; and 250 (B) are subject to Title 57, Chapter 21, Utah Fair Housing Act; and 251 (v) three representatives of the general public; and 252 (b) the commissioner or the commissioner's designee as a nonvoting member of the 253 council. 254 (2) In making [the appointments] an appointment under Subsection (1), the 255 commissioner shall consider representation of the following [protected] covered classes: 256 (a) race; 257 (b) color; 258 (c) national origin; 259 (d) [gender] sex; 260 (e) religion; 261 (f) age; 262 (g) persons with disabilities; 263 (h) sexual orientation; 264 (i) gender identity; 265 [(h)] (j) familial status as defined in Section 57-21-2; and 266 [(i)] (k) source of income as defined in Section 57-21-2. 267 (3) The division shall provide [any] necessary staff support for the council. 268 (4) (a) Except as required by Subsection (4)(b), as [terms of current council members 269 expire] a term of a council member expires, the commissioner shall appoint [each] a new 270 member or reappointed member to a four-year term. 271 (b) Notwithstanding the requirements of Subsection (4)(a), the commissioner shall, at 272 the time of appointment or reappointment, adjust the length of terms to ensure that the terms of 273 council members are staggered so that approximately half of the council is appointed every two 274 years. 275 (5) (a) When a vacancy occurs in the membership for any reason, the commissioner - 9 - H.B. 89 12-20-07 7:05 AM 276 shall appoint a replacement [shall be appointed] for the unexpired term. 277 (b) The commissioner shall terminate the term of a council member who ceases to be 278 representative as designated by the original appointment. 279 (6) (a) (i) [Members] A member who [are] is not a government [employees shall] 280 employee may not receive [no] compensation or benefits for [their] the member's services, but 281 may receive per diem and expenses incurred in the performance of the member’s official duties 282 at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107. 283 (ii) [Members] A member who is not a government employee may decline to receive 284 per diem and expenses for [their] the member's service. 285 (b) (i) [State] A state government officer [and employee members who do] or 286 employee member who does not receive salary, per diem, or expenses from [their] the 287 member's agency for [their] the member's service may receive per diem and expenses incurred 288 in the performance of [their] the member's official duties from the council at the rates 289 established by the Division of Finance under Sections 63A-3-106 and 63A-3-107. 290 (ii) [State] A state government officer [and] or employee [members] member may 291 decline to receive per diem and expenses for [their] the member's service. 292 (7) (a) The advisory council shall: 293 (i) offer advice on issues requested by: 294 (A) the commission; 295 (B) the division; or 296 (C) the Legislature; and 297 (ii) make recommendations to the commission and division regarding issues related to: 298 (A) employment discrimination; 299 (B) housing discrimination; and 300 (C) the administration by the commission of: 301 (I) the provisions of Title 34, Labor in General, that are administered by the 302 commission; 303 (II) Title 34A, Chapter 5, Utah Antidiscrimination Act; and 304 (III) Title 57, Chapter 21, Utah Fair Housing Act. 305 (b) The council shall [confer] meet at least quarterly for the purpose of advising the 306 commission, division, and the Legislature regarding issues described in Subsection (7)(a). - 10 - 12-20-07 7:05 AM H.B. 89 307 (8) (a) The commissioner or the commissioner's designee shall serve as chair of the 308 council. 309 (b) The chair [is charged with the responsibility of calling the necessary meetings] shall 310 call a necessary meeting. 311 Section 4. Section 34A-5-106 is amended to read: 312 34A-5-106. Discriminatory or prohibited employment practices -- Permitted 313 practices. 314 (1) It is a discriminatory or prohibited employment practice to take [any] an action 315 described in Subsections (1)(a) through (f). 316 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate 317 [any] a person, or to retaliate against, harass, or discriminate in matters of compensation or in 318 [terms, privileges, and conditions] a term, privilege, or condition of employment against [any] 319 a person otherwise qualified, [because] on the basis of: 320 (A) race; 321 (B) color; 322 (C) sex; 323 (D) pregnancy, childbirth, or pregnancy-related conditions; 324 (E) age, if the individual is 40 years of age or older; 325 (F) religion; 326 (G) national origin; [or] 327 (H) disability[.]; 328 (I) sexual orientation; or 329 (J) gender identity. 330 (ii) A person may not be considered "otherwise qualified," unless that person possesses 331 the following required by an employer for [any] a particular job, job classification, or position: 332 (A) education; 333 (B) training; 334 (C) ability, with or without reasonable accommodation; 335 (D) moral character; 336 (E) integrity; 337 (F) disposition to work; - 11 - H.B. 89 12-20-07 7:05 AM 338 (G) adherence to reasonable rules and regulations; and 339 (H) other job related qualifications required by an employer. 340 [(iii) (A) As used in this chapter, "to discriminate in matters of compensation" means 341 the payment of differing wages or salaries to employees having substantially equal experience, 342 responsibilities, and skill for the particular job.] 343 [(B)] (iii) Notwithstanding Subsection [(1)(a)(iii)(A)] 34A-5-102(6): 344 (I) nothing in this chapter prevents [increases] an increase in pay as a result of 345 longevity with the employer, if the salary [increases are] increase is uniformly applied and 346 available to all employees on a substantially proportional basis; and 347 (II) nothing in this section prohibits an employer and employee from agreeing to a rate 348 of pay or work schedule designed to protect the employee from loss of a Social Security 349 payment or [benefits] benefit if the employee is eligible for [those payments] the payment or 350 benefit. 351 (b) An employment agency may not: 352 (i) refuse to list and properly classify for employment, or refuse to refer an individual 353 for employment, in a known available job for which the individual is otherwise qualified, 354 [because] on the basis of: 355 (A) race; 356 (B) color; 357 (C) sex; 358 (D) pregnancy, childbirth, or pregnancy-related conditions; 359 (E) religion; 360 (F) national origin; 361 (G) age, if the individual is 40 years of age or older; [or] 362 (H) disability; [or] 363 (I) sexual orientation; or 364 (J) gender identity; or 365 (ii) comply with a request from an employer for referral of [applicants] an applicant for 366 employment if the request indicates either directly or indirectly that the employer discriminates 367 in employment on account of: 368 (A) race; - 12 - 12-20-07 7:05 AM H.B. 89 369 (B) color; 370 (C) sex; 371 (D) pregnancy, childbirth, or pregnancy-related conditions; 372 (E) religion; 373 (F) national origin; 374 (G) age, if the individual is 40 years of age or older; [or] 375 (H) disability[.]; 376 (I) sexual orientation; or 377 (J) gender identity. 378 (c) (i) A labor organization may not for a reason listed in Subsection (1)(c)(ii): 379 (A) exclude [any] an individual otherwise qualified from full membership rights in the 380 labor organization[,]; 381 (B) expel [the] an individual from membership in the labor organization[,]; or 382 (C) otherwise discriminate against or harass [any] a member of the labor 383 [organization's members] organization in full employment of work opportunity, or 384 representation[, because of:]. 385 (ii) An action described in Subsection (1)(c)(i) is prohibited if it is taken on the basis 386 of: 387 [(i)] (A) race; 388 (B) color; 389 [(ii)] (C) sex; 390 [(iii)] (D) pregnancy, childbirth, or pregnancy-related conditions; 391 [(iv)] (E) religion; 392 [(v)] (F) national origin; 393 [(vi)] (G) age, if the individual is 40 years of age or older; [or] 394 [(vii)] (H) disability[.]; 395 (I) sexual orientation; or 396 (J) gender identity. 397 (d) Unless based upon a bona fide occupational qualification, or required by and given 398 to an agency of government for a security [reasons] reason, an employer, employment agency, 399 or labor organization may not print, [or] circulate, or cause to be printed or circulated, [any] a - 13 - H.B. 89 12-20-07 7:05 AM 400 statement, advertisement, or publication, use [any] a form of application for employment or 401 membership, or make [any] an inquiry in connection with prospective employment or 402 membership that expresses, either directly or indirectly: 403 (i) [any] a limitation, specification, or discrimination as to: 404 (A) race; 405 (B) color; 406 (C) religion; 407 (D) sex; 408 (E) pregnancy, childbirth, or pregnancy-related conditions; 409 (F) national origin; 410 (G) age, if the individual is 40 years of age or older; [or] 411 (H) disability; 412 (I) sexual orientation; or 413 (J) gender identity; or 414 (ii) the intent to make [any] a limitation, specification, or discrimination described in 415 Subsection (1)(d)(i). 416 (e) A person, whether or not an employer, an employment agency, a labor organization, 417 or [the employees or members] an employee or member of an employer, employment agency, 418 or labor organization, may not: 419 (i) aid, incite, compel, or coerce the doing of an act defined in this section to be a 420 discriminatory or prohibited employment practice; 421 (ii) obstruct or prevent [any] a person from complying with this chapter, or [any] an 422 order issued under this chapter; or 423 (iii) attempt, either directly or indirectly, to commit [any] an act prohibited in this 424 section. 425 (f) (i) An employer, labor organization, joint apprenticeship committee, or vocational 426 school, providing, coordinating, or controlling an apprenticeship [programs] program, or 427 providing, coordinating, or controlling an on-the-job-training [programs] program, instruction, 428 training, or retraining [programs] program may not: 429 (A) deny to, or withhold from, [any] a qualified person, the right to be admitted to, or 430 participate in [any] the apprenticeship training program, on-the-job-training program, or other - 14 - 12-20-07 7:05 AM H.B. 89 431 occupational instruction, training or retraining program [because] on the basis of: 432 (I) race; 433 (II) color; 434 (III) sex; 435 (IV) pregnancy, childbirth, or pregnancy-related conditions; 436 (V) religion; 437 (VI) national origin; 438 (VII) age, if the individual is 40 years of age or older; [or] 439 (VIII) disability; 440 (IX) sexual orientation; or 441 (X) gender identity; 442 (B) discriminate against or harass [any] a qualified person in that person's pursuit of 443 [programs] a program described in Subsection (1)(f)(i)(A)[, or to] on the basis of: 444 (I) race; 445 (II) color; 446 (III) sex; 447 (IV) pregnancy, childbirth, or pregnancy-related conditions; 448 (V) religion; 449 (VI) national origin; 450 (VII) age, if the individual is 40 years of age or older; 451 (VIII) disability; 452 (IX) sexual orientation; or 453 (X) gender identity; 454 (C) discriminate against [such a person in the terms, conditions, or privileges of 455 programs] a qualified person in a term, condition, or privilege described in Subsection 456 (1)(f)(i)(A), [because] on the basis of: 457 (I) race; 458 (II) color; 459 (III) sex; 460 (IV) pregnancy, childbirth, or pregnancy-related conditions; 461 (V) religion; - 15 - H.B. 89 12-20-07 7:05 AM 462 (VI) national origin; 463 (VII) age, if the individual is 40 years of age or older; [or] 464 (VIII) disability; [or] 465 (IX) sexual orientation; or 466 (X) gender identity; or 467 [(C)] (D) except as provided in Subsection (1)(f)(ii), print, publish, or cause to be 468 printed or published, [any] a notice or advertisement relating to employment by the employer, 469 or membership in or [any] a classification or referral for employment by a labor organization, 470 or relating to [any] a classification or referral for employment by an employment agency, 471 indicating [any] a preference, limitation, specification, or discrimination [based] on the basis 472 of: 473 (I) race; 474 (II) color; 475 (III) sex; 476 (IV) pregnancy, childbirth, or pregnancy-related conditions; 477 (V) religion; 478 (VI) national origin; 479 (VII) age, if the individual is 40 years of age or older; [or] 480 (VIII) disability[.]; 481 (IX) sexual orientation; or 482 (X) gender identity. 483 (ii) Notwithstanding Subsection (1)(f)(i)[(C)](D), if the following is a bona fide 484 occupational qualification for employment, a notice or advertisement described in Subsection 485 (1)(f)(i)[(C)](D) may indicate a preference, limitation, specification, or discrimination [based] 486 on the basis of: 487 [(A) race;] 488 [(B) color;] 489 [(C)] (A) religion; 490 [(D)] (B) sex; 491 [(E)] (C) pregnancy, childbirth, or pregnancy-related conditions; 492 [(F)] (D) age; - 16 - 12-20-07 7:05 AM H.B. 89 493 [(G)] (E) national origin; [or] 494 [(H)] (F) disability[.]; 495 (G) sexual orientation; or 496 (H) gender identity. 497 (2) [Nothing contained in] Subsections (1)(a) through (1)(f) [shall] may not be 498 construed to prevent: 499 (a) the termination of employment of an individual who, with or without reasonable 500 accommodation, is physically, mentally, or emotionally unable to perform the duties required 501 by that individual's employment; 502 (b) the variance of an insurance [premiums] premium or coverage on account of age; or 503 (c) a restriction on the activities of [individuals] a person licensed [by the liquor 504 authority] in accordance with Title 32A, Alcoholic Beverage Control Act, with respect to 505 [persons] a person under 21 years of age. 506 (3) (a) It is not a discriminatory or prohibited employment practice: 507 (i) to do the following on the basis of religion, sex, pregnancy, childbirth, 508 pregnancy-related conditions, age, national origin, disability, sexual orientation, or gender 509 identity if the conditions of Subsection (3)(b) are met: 510 [(i)] (A) for an employer to hire and employ [employees,] an employee; 511 (B) for an employment agency to classify or refer for employment [any] an 512 individual[,]; 513 (C) for a labor organization to classify its membership or to classify or refer for 514 employment [any] an individual; or 515 (D) for an employer, labor organization, or joint labor-management committee 516 controlling apprenticeship or other training or retraining [programs] program to admit or 517 employ [any] an individual in [any such] the program[, on the basis of religion, sex, pregnancy, 518 childbirth, or pregnancy-related conditions, age, national origin, or disability in those certain 519 instances where religion, sex, pregnancy, childbirth, or pregnancy-related conditions, age, if the 520 individual is 40 years of age or older, national origin, or disability is a bona fide occupational 521 qualification reasonably necessary to the normal operation of that particular business or 522 enterprise]; 523 (ii) for a [school, college, university, or other] religious educational institution to hire - 17 - H.B. 89 12-20-07 7:05 AM 524 and employ [employees] an employee of a particular religion [if:]; 525 [(A) the school, college, university, or other educational institution is, in whole or in 526 substantial part, owned, supported, controlled, or managed by a particular religious corporation, 527 association, or society; or] 528 [(B) the curriculum of the school, college, university, or other educational institution is 529 directed toward the propagation of a particular religion;] 530 (iii) for an employer to give preference in employment to: 531 (A) the employer's: 532 (I) spouse; 533 (II) child; or 534 (III) son-in-law or daughter-in-law; 535 (B) [any] a person for whom the employer is or would be liable to furnish financial 536 support if [those persons] the person were unemployed; 537 (C) [any] a person to whom the employer during the preceding six months [has 538 furnished] furnishes more than one-half of total financial support regardless of whether or not 539 the employer was or is legally obligated to furnish support; or 540 (D) [any] a person whose education or training [was] is substantially financed by the 541 employer for a period of two years or more. 542 [(b) Nothing in this chapter applies to any] 543 (b) An action described in Subsection (3)(a)(i) is not a discriminatory or prohibited 544 employment practice if: 545 (i) religion, sex, pregnancy, childbirth, a pregnancy-related condition, national origin, a 546 disability, sexual orientation, or gender identity is a bona fide occupational qualification 547 reasonably necessary to the normal operation of that particular business or enterprise; or 548 (ii) (A) the individual is 40 years of age or older; and 549 (B) age is a bona fide occupational qualification reasonably necessary to the normal 550 operation of that particular business or enterprise. 551 (c) This chapter does not apply to a business or enterprise on or near an Indian 552 reservation with respect to [any] a publicly announced employment practice of the business or 553 enterprise under which preferential treatment is given to [any] an individual because that 554 individual is a native American Indian living on or near an Indian reservation. - 18 - 12-20-07 7:05 AM H.B. 89 555 [(c) Nothing in this chapter shall] 556 (d) (i) This chapter may not be interpreted to require [any] an employer, employment 557 agency, labor organization, vocational school, joint labor-management committee, or 558 apprenticeship program subject to this chapter to grant preferential treatment [to any individual 559 or to any group because] on the basis of the race, color, religion, sex, age, national origin, or 560 disability of [the] an individual or group on account of an imbalance [which] that may exist: 561 (A) with respect to the total number or percentage of persons of [any] the race, color, 562 religion, sex, age, national origin, or disability; and 563 (B) in comparison with the total number or percentage of persons of that race, color, 564 religion, sex, age, national origin, or disability in any community or county or in the available 565 work force in any community or county. 566 (ii) This Subsection (3)(d) applies to an individual or group: 567 (A) employed by [any] an employer[,]; 568 (B) referred or classified for employment by an employment agency or labor 569 organization[,]; 570 (C) admitted to membership or classified by [any] a labor organization[,]; or 571 (D) admitted to or employed in, [any] an apprenticeship or other training program[, in 572 comparison with the total number or percentage of persons of that race, color, religion, sex, 573 age, national origin, or disability in any community or county or in the available work force in 574 any community or county]. 575 (e) An employer, employment agency, labor organization, vocational school, joint 576 labor-management committee, or apprenticeship program subject to this chapter may not: 577 (i) adopt or implement a system under which a specific number or percentage of 578 persons are employed or selected to participate in a program on the basis of sexual orientation 579 or gender identity; or 580 (ii) give a preference to an individual on the basis of sexual orientation or gender 581 identity. 582 (4) It is not a discriminatory or prohibited practice with respect to age to observe the 583 terms of a bona fide seniority system or [any] a bona fide employment benefit plan such as a 584 retirement, pension, or insurance plan that is not a subterfuge to evade the purposes of this 585 chapter, except that [no such] an employee benefit plan [shall] may not excuse the failure to - 19 - H.B. 89 12-20-07 7:05 AM 586 hire an individual. 587 (5) Notwithstanding Subsection (4), or [any other statutory provision] another statute to 588 the contrary, a person may not be subject to involuntary termination or retirement from 589 employment on the basis of age alone, if the individual is 40 years of age or older, except: 590 (a) under Subsection (6); 591 (b) under Section 67-5-8; and 592 (c) when age is a bona fide occupational qualification. 593 (6) [Nothing] (a) If the conditions of Subsection (6)(b) are met, nothing in this section 594 prohibits compulsory retirement of an employee who [has attained]: 595 (i) attains at least 65 years of age[,]; and [who,] 596 (ii) for the two-year period immediately before retirement, is employed in a bona fide 597 executive or a high policymaking position[, if:]. 598 (b) Subsection (6)(a) applies if: 599 [(a) that] (i) the employee is entitled to an immediate nonforfeitable annual retirement 600 benefit from the employee's employer's: 601 (A) pension[,] plan; 602 (B) profit-sharing[,] plan; 603 (C) savings[, or] plan; 604 (D) deferred compensation plan[,]; or [any] 605 (E) plans described in this Subsection (6)(b)(i) in combination [of those plans]; and 606 [(b)] (ii) the benefit described in Subsection (6)[(a)](b)(i) equals, in the aggregate, at 607 least $44,000. 608 Section 5. Section 34A-5-107 is amended to read: 609 34A-5-107. Procedure for aggrieved person to file claim -- Investigations -- 610 Adjudicative proceedings -- Settlement -- Reconsideration -- Determination. 611 (1) (a) [Any] A person claiming to be aggrieved by a discriminatory or prohibited 612 employment practice may, or that person's attorney or agent may, make, sign, and file with the 613 division a request for agency action. 614 (b) [Every] A request for agency action shall be verified under oath or affirmation. 615 (c) A request for agency action made under this section shall be filed within 180 days 616 after the alleged discriminatory or prohibited employment practice occurred. - 20 - 12-20-07 7:05 AM H.B. 89 617 (d) The division may transfer a request for agency action filed with the division 618 pursuant to this section to the federal Equal Employment Opportunity Commission in 619 accordance with the provisions of [any] a work-share agreement that is: 620 (i) between the division and the Equal Employment Opportunity Commission; and 621 (ii) in effect on the day on which the request for agency action is transferred. 622 (2) [Any] An employer, labor organization, joint apprenticeship committee, or 623 vocational school who has an employee or member who refuses or threatens to refuse to 624 comply with this chapter may file with the division a request for agency action asking the 625 division for assistance to obtain the employee's or member's compliance by conciliation or 626 other remedial action. 627 (3) (a) Before a hearing is set or held as part of [any] an adjudicative proceeding, the 628 division shall promptly assign an investigator to attempt a settlement between the parties by 629 conference, conciliation, or persuasion. 630 (b) If no settlement is reached under Subsection (3)(a), the investigator shall make a 631 prompt impartial investigation of [all allegations] an allegation made in the request for agency 632 action. 633 (c) The division and its staff, agents, and employees: 634 (i) shall conduct [every] an investigation in fairness to all parties and agencies 635 involved; and 636 (ii) may not attempt a settlement between the parties if it is clear that no discriminatory 637 or prohibited employment practice has occurred. 638 (d) An aggrieved party may withdraw the request for agency action [prior to] before the 639 issuance of a final order. 640 (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator 641 uncovers insufficient evidence during the investigation to support [the allegations] an 642 allegation of a discriminatory or prohibited employment practice set out in the request for 643 agency action, the investigator shall formally report [these findings] the finding to the director 644 or the director's designee. 645 (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director 646 or the director's designee may issue a determination and order for dismissal of the adjudicative 647 proceeding. - 21 - H.B. 89 12-20-07 7:05 AM 648 (c) A party may make a written request to the Division of Adjudication for an 649 evidentiary hearing to review de novo the director's or the director's designee's determination 650 and order within 30 days of the date the determination and order for dismissal is issued. 651 (d) If the director or the director's designee [receives no timely] does not receive a 652 request for a hearing within the time period described in Subsection (4)(c), the determination 653 and order issued by the director or the director's designee becomes the final order of the 654 commission. 655 (5) (a) If the initial attempts at settlement are unsuccessful and the investigator 656 uncovers sufficient evidence during the investigation to support [the allegations] an allegation 657 of a discriminatory or prohibited employment practice set out in the request for agency action, 658 the investigator shall formally report [these findings] this finding to the director or the 659 director's designee. 660 (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the 661 director or the director's designee may issue a determination and order [based] on the basis of 662 the investigator's report. 663 (ii) A determination and order issued under this Subsection (5)(b) shall: 664 (A) direct the respondent to cease [any] a discriminatory or prohibited employment 665 practice; and 666 (B) provide relief to the aggrieved party as the director or the director's designee 667 determines is appropriate. 668 (c) A party may file a written request to the Division of Adjudication for an evidentiary 669 hearing to review de novo the director's or the director's designee's determination and order 670 within 30 days of the date the determination and order is issued. 671 (d) If the director or the director's designee [receives no timely] does not receive a 672 request for a hearing within the time period described in Subsection (5)(c), the determination 673 and order issued by the director or the director's designee in accordance with Subsection (5)(b) 674 becomes the final order of the commission. 675 (6) In [any] an adjudicative proceeding to review the director's or the director's 676 designee's determination that a prohibited employment practice has occurred, the division shall 677 present the factual and legal basis of the determination or order issued under Subsection (5). 678 (7) (a) [Prior to] Before the commencement of an evidentiary hearing[: (i)] the party - 22 - 12-20-07 7:05 AM H.B. 89 679 filing the request for agency action may reasonably and fairly amend [any] an allegation[; and]. 680 [(ii) the] (b) The respondent may amend its answer[.]: 681 [(b) An amendment permitted under this Subsection (7) may be made:] 682 (i) during or after [a] an evidentiary hearing; and 683 (ii) only with permission of the presiding officer. 684 (8) (a) If, upon all the evidence at a hearing, the presiding officer finds that a 685 respondent has not engaged in a discriminatory or prohibited employment practice, the 686 presiding officer shall issue an order dismissing the request for agency action containing the 687 allegation of a discriminatory or prohibited employment practice. 688 (b) The presiding officer may order that the respondent be reimbursed by the 689 complaining party for the respondent's [attorneys'] attorney fees and costs. 690 (9) If upon all the evidence at the hearing, the presiding officer finds that a respondent 691 has engaged in a discriminatory or prohibited employment practice, the presiding officer shall 692 issue an order requiring the respondent to: 693 (a) cease [any] a discriminatory or prohibited employment practice; and 694 (b) provide relief to the complaining party, including: 695 (i) reinstatement; 696 (ii) back pay and benefits; 697 (iii) [attorneys'] attorney fees; and 698 (iv) costs. 699 (10) Conciliation between the parties is to be urged and facilitated at all stages of the 700 adjudicative process. 701 (11) (a) Either party may file with the Division of Adjudication a written request for 702 review before the commissioner or Appeals Board of the order issued by the presiding officer 703 in accordance with: 704 (i) Section 63-46b-12; and 705 (ii) Chapter 1, Part 3, Adjudicative Proceedings. 706 (b) If there is no timely request for review, the order issued by the presiding officer 707 becomes the final order of the commission. 708 (12) An order of the commission under Subsection (11)(a) is subject to judicial review 709 as provided in: - 23 - H.B. 89 12-20-07 7:05 AM 710 (a) Section 63-46b-16; and 711 (b) Chapter 1, Part 3, Adjudicative Proceedings. 712 (13) The commission [shall have authority to] may make rules concerning procedures 713 under this chapter in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking 714 Act. 715 (14) The commission and its staff may not divulge or make public [any] information 716 gained from [any] an investigation, settlement negotiation, or proceeding before the 717 commission except as provided in Subsections (14)(a) through (d). 718 (a) Information used by the director or the director's designee in making [any] a 719 determination may be provided to all interested parties for the purpose of preparation for and 720 participation in proceedings before the commission. 721 (b) General statistical information may be disclosed [provided the identities of the 722 individuals or parties are] if the identity of an individual or party is not disclosed. 723 (c) Information may be disclosed for inspection by the attorney general or [other] 724 another legal [representatives] representative of the state or the commission. 725 (d) Information may be disclosed for information and reporting requirements of the 726 federal government. 727 (15) The procedures contained in this section are the exclusive remedy under state law 728 for employment discrimination [based upon] on the basis of: 729 (a) race; 730 (b) color; 731 (c) sex; 732 (d) retaliation; 733 (e) pregnancy, childbirth, or pregnancy-related conditions; 734 (f) age; 735 (g) religion; 736 (h) national origin; [or] 737 (i) disability[.]; 738 (j) sexual orientation; or 739 (k) gender identity. 740 (16) (a) The commencement of an action under federal law for relief [based upon any] - 24 - 12-20-07 7:05 AM H.B. 89 741 on the basis of an act prohibited by this chapter bars the commencement or continuation of 742 [any] an adjudicative proceeding before the commission in connection with the same [claims] 743 claim under this chapter. 744 (b) The transfer of a request for agency action to the Equal Employment Opportunity 745 Commission in accordance with Subsection (1)(d) is considered the commencement of an 746 action under federal law for purposes of Subsection (16)(a). 747 (c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair the 748 exclusive remedy provision set forth in Subsection (15). 749 Section 6. Section 67-19-6.3 is amended to read: 750 67-19-6.3. Equal employment opportunity plan. 751 (1) In conjunction with the director's duties under Section 67-19-6, and 752 notwithstanding the general prohibition in Subsection 34A-5-106(3)[(c)](d), the executive 753 director shall prepare an equal employment opportunity plan for state employment consistent 754 with the guidelines provided in federal equal employment opportunity laws and in related 755 federal regulations. 756 (2) The equal employment opportunity plan required by this section applies only to 757 state career service employees described in Section 67-19-15. 758 (3) The Legislature shall review the equal employment opportunity plan required by 759 this section before it may be implemented. 760 (4) Nothing in this section requires the establishment of hiring quotas or preferential 761 treatment of any identifiable group. Legislative Review Note as of 11-29-07 2:27 PM Office of Legislative Research and General Counsel - 25 -