Text of UT SB 262 (2013)

S.B. 262 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: P. Owen 6 6 03-01-13 7:31 AM 6 S.B. 262 1 EMPLOYMENT AND HOUSING ANTIDISCRIMINATION 2 AMENDMENTS 3 2013 GENERAL SESSION 4 STATE OF UTAH 5 Chief Sponsor: Stephen H. Urquhart 6 House Sponsor: ____________ 7 Cosponsor: Jim Dabakis 8 9 LONG TITLE 10 General Description: 11 This bill modifies the Utah Antidiscrimination Act and the Utah Fair Housing Act to 12 address discrimination, including discrimination on the basis of sexual orientation and 13 gender identity. 14 Highlighted Provisions: 15 This bill: 16 < modifies definition provisions related to employment and housing discrimination, 17 including defining "gender identity" and "sexual orientation"; 18 < modifies powers of division; 19 < includes sexual orientation and gender identity as a consideration in appointments to 20 the Antidiscrimination and Labor Advisory Council; 21 < includes sexual orientation and gender identity as prohibited bases for 22 discrimination in employment; 23 < addresses dress and grooming standards and shared facilities; 24 < addresses exclusive remedy; 25 < modifies exemptions to the Utah Fair Housing Act; 26 < includes sexual orientation and gender identity as prohibited bases for *SB0262* S.B. 262 03-01-13 7:31 AM - 2 - 27 discriminatory housing practices; and 28 < makes technical and conforming amendments. 29 Money Appropriated in this Bill: 30 None 31 Other Special Clauses: 32 None 33 Utah Code Sections Affected: 34 AMENDS: 35 34A-5-102, as last amended by Laws of Utah 2011, Chapter 413 36 34A-5-104, as last amended by Laws of Utah 2012, Chapter 369 37 34A-5-105, as last amended by Laws of Utah 2010, Chapter 286 38 34A-5-106, as last amended by Laws of Utah 2012, Chapter 101 39 34A-5-107, as last amended by Laws of Utah 2008, Chapter 382 40 57-21-2, as last amended by Laws of Utah 2010, Chapter 379 41 57-21-3, as last amended by Laws of Utah 1993, Chapter 114 42 57-21-5, as last amended by Laws of Utah 2011, Chapter 366 43 57-21-6, as last amended by Laws of Utah 1993, Chapter 114 44 57-21-7, as last amended by Laws of Utah 1993, Chapter 114 45 46 Be it enacted by the Legislature of the state of Utah: 47 Section 1. Section 34A-5-102 is amended to read: 48 34A-5-102. Definitions -- Unincorporated entities. 49 (1) As used in this chapter: 50 (a) "Affiliate" is as defined in Section 16-6a-102. 51 [(a)] (b) "Apprenticeship" means a program for the training of apprentices including a 52 program providing the training of those persons defined as apprentices by Section 35A-6-102. 53 [(b)] (c) "Bona fide occupational qualification" means a characteristic applying to an 54 employee that: 55 (i) is necessary to the operation of the employer's business; or 56 (ii) is the essence of the [employee's] employer's business. 57 [(c)] (d) "Court" means: 03-01-13 7:31 AM S.B. 262 - 3 - 58 (i) the district court in the judicial district of the state in which the asserted unfair 59 employment practice [occurred] occurs; or 60 (ii) if [this] the district court is not in session at that time, a judge of the court described 61 in Subsection (1)[(c)](d)(i). 62 [(d)] (e) "Director" means the director of the division. 63 [(e)] (f) "Disability" means a physical or mental disability as defined and covered by 64 the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102. 65 [(f)] (g) "Division" means the Division of Antidiscrimination and Labor. 66 [(g)] (h) "Employee" means [any] a person applying with or employed by an employer. 67 [(h)] (i) (i) "Employer" means: 68 (A) the state; 69 (B) [any] a political subdivision; 70 (C) a board, commission, department, institution, school district, trust, or agent of the 71 state or [its] a political [subdivisions] subdivision of the state; or 72 (D) a person employing 15 or more employees within the state for each working day in 73 each of 20 calendar weeks or more in the current or preceding calendar year. 74 (ii) "Employer" does not include: 75 (A) a religious organization or association; 76 (B) a religious corporation sole; [or] 77 (C) [any] a corporation or association constituting an affiliate, a wholly owned 78 subsidiary, or an agency of any religious organization or association or religious corporation 79 sole[.]; or 80 (D) an organization engaged in public or private expression if employing an individual 81 would affect in a significant way the organization's ability to advocate public or private 82 viewpoints protected by the freedom of expressive association described in decisions of the 83 United States Supreme Court or the Utah Supreme Court. 84 [(i)] (j) "Employment agency" means [any] a person: 85 (i) undertaking to procure employees or opportunities to work for any other person; or 86 (ii) holding the person out to be equipped to take an action described in Subsection 87 (1)[(i)](j)(i). 88 (k) "Gender identity" means an individual's internal sense of gender, without regard to S.B. 262 03-01-13 7:31 AM - 4 - 89 the individual's designated sex at birth. Evidence of gender identity may include an 90 individual's self-identification, as well as the individual's gender-related appearance, 91 mannerisms, and other gender-related characteristics. 92 [(j)] (l) "Joint apprenticeship committee" means [any] an association of representatives 93 of a labor organization and an employer providing, coordinating, or controlling an apprentice 94 training program. 95 [(k)] (m) "Labor organization" means [any] an organization that exists for the purpose 96 in whole or in part of: 97 (i) collective bargaining; 98 (ii) dealing with employers concerning grievances, terms or conditions of employment; 99 or 100 (iii) other mutual aid or protection in connection with employment. 101 [(l)] (n) "National origin" means the place of birth, domicile, or residence of an 102 individual or of an individual's ancestors. 103 [(m)] (o) "On-the-job training program" means [any] a program designed to instruct a 104 person who, while learning the particular job for which the person is receiving instruction: 105 (i) is also employed at that job; or 106 (ii) may be employed by the employer conducting the program during the course of the 107 program, or when the program is completed. 108 [(n)] (p) "Person" means: 109 (i) one or more individuals, partnerships, associations, corporations, legal 110 representatives, trusts or trustees, or receivers[,]; 111 (ii) the state; and [all political subdivisions and agencies] 112 (iii) a political subdivision or agency of the state. 113 [(o)] (q) "Presiding officer" means the same as that term is defined in Section 114 63G-4-103. 115 [(p)] (r) "Prohibited employment practice" means a practice specified as 116 discriminatory, and therefore unlawful, in Section 34A-5-106. 117 [(q)] (s) "Retaliate" means the taking of adverse action by an employer, employment 118 agency, labor organization, apprenticeship program, on-the-job training program, or vocational 119 school against one of its employees, applicants, or members because the employee, applicant, 03-01-13 7:31 AM S.B. 262 - 5 - 120 or member [has]: 121 (i) [opposed any] opposes an employment practice prohibited under this chapter; or 122 (ii) [filed charges, testified, assisted, or participated] files charges, testifies, assists, or 123 participates in any way in [any] a proceeding, investigation, or hearing under this chapter. 124 (t) "Sexual orientation" means an individual's actual or perceived orientation as 125 heterosexual, homosexual, or bisexual. 126 [(r)] (u) "Unincorporated entity" means an entity organized or doing business in the 127 state that is not: 128 (i) an individual; 129 (ii) a corporation; or 130 (iii) publicly traded. 131 [(s)] (v) "Vocational school" means [any] a school or institution conducting a course of 132 instruction, training, or retraining to prepare individuals to follow an occupation or trade, or to 133 pursue a manual, technical, industrial, business, commercial, office, personal services, or other 134 nonprofessional occupations. 135 (2) (a) For purposes of this chapter, an unincorporated entity that is required to be 136 licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to 137 be the employer of each individual who, directly or indirectly, holds an ownership interest in 138 the unincorporated entity. 139 (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3, 140 Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption 141 under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that 142 the individual: 143 (i) is an active manager of the unincorporated entity; 144 (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated 145 entity; or 146 (iii) is not subject to supervision or control in the performance of work by: 147 (A) the unincorporated entity; or 148 (B) a person with whom the unincorporated entity contracts. 149 (c) As part of the rules made under Subsection (2)(b), the commission may define: 150 (i) "active manager"; S.B. 262 03-01-13 7:31 AM - 6 - 151 (ii) "directly or indirectly holds at least an 8% ownership interest"; and 152 (iii) "subject to supervision or control in the performance of work." 153 Section 2. Section 34A-5-104 is amended to read: 154 34A-5-104. Powers. 155 (1) (a) The commission has jurisdiction over the subject of employment practices and 156 discrimination made unlawful by this chapter. 157 (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and 158 for the enforcement of this chapter. 159 (2) The division may: 160 (a) appoint and prescribe the duties of [investigators and other employees and agents 161 that it] an investigator, other employee, or agent of the commission that the commission 162 considers necessary for the enforcement of this chapter; 163 (b) receive, reject, investigate, and pass upon [complaints] a complaint alleging: 164 (i) discrimination in: 165 (A) employment; 166 (B) an apprenticeship [programs] program; 167 (C) an on-the-job training [programs; and] program; or 168 (D) a vocational [schools] school; or 169 (ii) the existence of a discriminatory or prohibited employment practice by: 170 (A) a person; 171 (B) an employer; 172 (C) an employment agency; 173 (D) a labor organization; 174 (E) [the employees or members] an employee or member of an employment agency or 175 labor organization; 176 (F) a joint apprenticeship committee; and 177 (G) a vocational school; 178 (c) investigate and study the existence, character, causes, and extent of discrimination 179 [in]: 180 (i) in one or more of the following in this state: 181 (A) employment[,]; 03-01-13 7:31 AM S.B. 262 - 7 - 182 (B) apprenticeship programs[,]; 183 (C) on-the-job training programs[,]; and 184 (D) vocational schools [in this state]; and 185 (ii) by: 186 [(i)] (A) employers; 187 [(ii)] (B) employment agencies; 188 [(iii)] (C) labor organizations; 189 [(iv)] (D) joint apprenticeship committees; and 190 [(v)] (E) vocational schools; 191 (d) formulate one or more plans for the elimination of discrimination by educational or 192 other means; 193 (e) hold [hearings upon] a hearing on a complaint made against: 194 (i) a person; 195 (ii) an employer; 196 (iii) an employment agency; 197 (iv) a labor organization; 198 (v) [the employees or members] an employee or member of an employment agency or 199 labor organization; 200 (vi) a joint apprenticeship committee; or 201 (vii) a vocational school; 202 (f) issue one or more publications and reports of investigations and research that: 203 (i) promote good will among the various racial, religious, and ethnic groups of the 204 state; and 205 (ii) minimize or eliminate discrimination in employment because of race, color, sex, 206 religion, national origin, age, [or] disability, sexual orientation, or gender identity; 207 (g) prepare and transmit to the governor, at least once each year, reports describing: 208 (i) [its] the division's proceedings, investigations, and hearings; 209 (ii) the outcome of those hearings; 210 (iii) decisions the division [has rendered] renders; and 211 (iv) the other work performed by the division; 212 (h) recommend policies to the governor, and submit recommendation to employers, S.B. 262 03-01-13 7:31 AM - 8 - 213 employment agencies, and labor organizations to implement those policies; 214 (i) recommend [any] legislation to the governor that the division considers necessary 215 concerning discrimination because of: 216 (A) race[,]; 217 (B) sex[,]; 218 (C) color[,]; 219 (D) national origin[,]; 220 (E) religion[,]; 221 (F) age[, or]; 222 (G) disability [to the governor that it considers necessary; and]; 223 (H) sexual orientation; or 224 (I) gender identity; and 225 (j) within the limits of [any] appropriations made for its operation, cooperate with other 226 agencies or organizations, both public and private, in the planning and conducting of 227 educational programs designed to eliminate discriminatory practices prohibited under this 228 chapter. 229 (3) The division shall investigate an alleged discriminatory [practices] practice 230 involving [officers or employees] an officer or employee of state government if requested to do 231 so by the Career Service Review Office. 232 (4) (a) In [any] a hearing held under this chapter, the division may: 233 (i) subpoena witnesses and compel their attendance at the hearing; 234 (ii) administer oaths and take the testimony of [any] a person under oath; and 235 (iii) compel [any] a person to produce for examination [any books, papers] a book, 236 paper, or other information relating to the matters raised by the complaint. 237 (b) The division director or a hearing examiner appointed by the division director may 238 conduct [hearings] a hearing. 239 (c) If a witness fails or refuses to obey a subpoena issued by the division, the division 240 may petition the district court to enforce the subpoena. 241 (d) [In the event] If a witness asserts a privilege against self-incrimination, testimony 242 and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of 243 Immunity. 03-01-13 7:31 AM S.B. 262 - 9 - 244 Section 3. Section 34A-5-105 is amended to read: 245 34A-5-105. Antidiscrimination and Labor Advisory Council -- Membership -- 246 Appointment -- Term -- Powers and duties -- Chair. 247 (1) There is created an Antidiscrimination and Labor Advisory Council consisting of: 248 (a) 13 voting members appointed by the commissioner as follows: 249 (i) three employer representatives; 250 (ii) three employee representatives; 251 (iii) two representatives of persons who seek to rent or purchase [dwellings] a 252 dwelling, as defined in Section 57-21-2; 253 (iv) two representatives of persons who: 254 (A) sell or rent dwellings; and 255 (B) are subject to Title 57, Chapter 21, Utah Fair Housing Act; and 256 (v) three representatives of the general public; and 257 (b) the commissioner or the commissioner's designee as a nonvoting member of the 258 council. 259 (2) In making [the appointments] an appointment under Subsection (1), the 260 commissioner shall consider representation of the following [protected classes] classifications: 261 (a) race; 262 (b) color; 263 (c) national origin; 264 (d) [gender] sex; 265 (e) religion; 266 (f) age; 267 (g) persons with disabilities; 268 (h) sexual orientation; 269 (i) gender identity; 270 [(h)] (j) familial status as defined in Section 57-21-2; and 271 [(i)] (k) source of income as defined in Section 57-21-2. 272 (3) The division shall provide any necessary staff support for the council. 273 (4) (a) Except as required by Subsection (4)(b), as terms of current council members 274 expire, the commissioner shall appoint each new member or reappointed member to a four-year S.B. 262 03-01-13 7:31 AM - 10 - 275 term. 276 (b) Notwithstanding the requirements of Subsection (4)(a), the commissioner shall, at 277 the time of appointment or reappointment, adjust the length of terms to ensure that the terms of 278 council members are staggered so that approximately half of the council is appointed every two 279 years. 280 (5) (a) When a vacancy occurs in the membership for any reason, the commissioner 281 shall appoint a replacement [shall be appointed] for the unexpired term. 282 (b) The commissioner shall terminate the term of a council member who ceases to be 283 representative as designated by the original appointment. 284 (6) A member may not receive compensation or benefits for the member's service, but 285 may receive per diem and travel expenses in accordance with: 286 (a) Section 63A-3-106; 287 (b) Section 63A-3-107; and 288 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and 289 63A-3-107. 290 (7) (a) The advisory council shall: 291 (i) offer advice on issues requested by: 292 (A) the commission; 293 (B) the division; or 294 (C) the Legislature; and 295 (ii) make recommendations to the commission and division regarding issues related to: 296 (A) employment discrimination; 297 (B) housing discrimination; and 298 (C) the administration by the commission of: 299 (I) the provisions of Title 34, Labor in General, that are administered by the 300 commission; 301 (II) [Title 34A, Chapter 5, Utah Antidiscrimination Act] this chapter; and 302 (III) Title 57, Chapter 21, Utah Fair Housing Act. 303 (b) The council shall [confer] meet at least quarterly for the purpose of advising the 304 commission, division, and the Legislature regarding issues described in Subsection (7)(a). 305 (8) (a) The commissioner or the commissioner's designee shall serve as chair of the 03-01-13 7:31 AM S.B. 262 - 11 - 306 council. 307 (b) The chair [is charged with the responsibility of calling] shall call the necessary 308 meetings. 309 Section 4. Section 34A-5-106 is amended to read: 310 34A-5-106. Discriminatory or prohibited employment practices -- Permitted 311 practices. 312 (1) It is a discriminatory or prohibited employment practice to take [any] an action 313 described in Subsections (1)(a) through (f). 314 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate 315 [any] a person, or to retaliate against, harass, or discriminate in matters of compensation or in 316 terms, privileges, and conditions of employment against [any] a person otherwise qualified, 317 because of: 318 (A) race; 319 (B) color; 320 (C) sex; 321 (D) pregnancy, childbirth, or pregnancy-related conditions; 322 (E) age, if the individual is 40 years of age or older; 323 (F) religion; 324 (G) national origin; [or] 325 (H) disability[.]; 326 (I) sexual orientation; or 327 (J) gender identity. 328 (ii) A person may not be considered "otherwise qualified," unless that person possesses 329 the following required by an employer for any particular job, job classification, or position: 330 (A) education; 331 (B) training; 332 (C) ability, with or without reasonable accommodation; 333 (D) moral character; 334 (E) integrity; 335 (F) disposition to work; 336 (G) adherence to reasonable rules and regulations; and S.B. 262 03-01-13 7:31 AM - 12 - 337 (H) other job related qualifications required by an employer. 338 (iii) [(A)] As used in this chapter, "to discriminate in matters of compensation" means 339 the payment of differing wages or salaries to employees having substantially equal experience, 340 responsibilities, and skill for the particular job. 341 [(B)] (iv) Notwithstanding Subsection (1)(a)(iii)[(A)]: 342 [(I)] (A) nothing in this chapter prevents [increases] an increase in pay as a result of 343 longevity with the employer, if the salary [increases are] increase is uniformly applied and 344 available to all employees on a substantially proportional basis; and 345 [(II)] (B) nothing in this section prohibits an employer and employee from agreeing to 346 a rate of pay or work schedule designed to protect the employee from loss of Social Security 347 payment or benefits if the employee is eligible for those payments. 348 (b) An employment agency may not: 349 (i) refuse to list and properly classify for employment, or refuse to refer an individual 350 for employment, in a known available job for which the individual is otherwise qualified, 351 because of: 352 (A) race; 353 (B) color; 354 (C) sex; 355 (D) pregnancy, childbirth, or pregnancy-related conditions; 356 (E) religion; 357 (F) national origin; 358 (G) age, if the individual is 40 years of age or older; [or] 359 (H) disability; [or] 360 (I) sexual orientation; or 361 (J) gender identity; or 362 (ii) comply with a request from an employer for referral of [applicants] an applicant for 363 employment if the request indicates either directly or indirectly that the employer discriminates 364 in employment on account of: 365 (A) race; 366 (B) color; 367 (C) sex; 03-01-13 7:31 AM S.B. 262 - 13 - 368 (D) pregnancy, childbirth, or pregnancy-related conditions; 369 (E) religion; 370 (F) national origin; 371 (G) age, if the individual is 40 years of age or older; [or] 372 (H) disability[.]; 373 (I) sexual orientation; or 374 (J) gender identity. 375 (c) (i) A labor organization may not for a reason listed in Subsection (1)(c)(ii): 376 (A) exclude [any] an individual otherwise qualified from full membership rights in the 377 labor organization[,]; 378 (B) expel the individual from membership in the labor organization[,]; or 379 (C) otherwise discriminate against or harass [any of the labor organization's members] 380 a member of the labor organization in full employment of work opportunity[,] or 381 representation[, because of:]. 382 (ii) A labor organization may not take an action listed in this Subsection (1)(c) because 383 of: 384 [(i)] (A) race; 385 [(ii)] (B) sex; 386 [(iii)] (C) pregnancy, childbirth, or pregnancy-related conditions; 387 [(iv)] (D) religion; 388 [(v)] (E) national origin; 389 [(vi)] (F) age, if the individual is 40 years of age or older; [or] 390 [(vii)] (G) disability[.]; 391 (H) sexual orientation; or 392 (I) gender identity. 393 (d) (i) Unless based upon a bona fide occupational qualification, or required by and 394 given to an agency of government for a security [reasons] reason, an employer, employment 395 agency, or labor organization may not do the following if the statement, advertisement, 396 publication, form, or inquiry violates Subsection (1)(d)(ii): 397 (A) print, [or] circulate, or cause to be printed or circulated, [any] a statement, 398 advertisement, or publication[,]; S.B. 262 03-01-13 7:31 AM - 14 - 399 (B) use [any] a form of application for employment or membership[,]; or 400 (C) make any inquiry in connection with prospective employment or membership. 401 (ii) This Subsection (1)(d) applies to a statement, advertisement, publication, form, or 402 inquiry that expresses, either directly or indirectly[: (i) any] a limitation, specification, or 403 discrimination, or the intent to make 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 [(ii) the intent to make any limitation, specification, or discrimination described in 413 Subsection (1)(d)(i).] 414 (I) sexual orientation; or 415 (J) gender identity. 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 03-01-13 7:31 AM S.B. 262 - 15 - 430 participate in [any] an apprenticeship training program, on-the-job-training program, or other 431 occupational instruction, training, or retraining program because 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] because 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 qualified person in the terms, conditions, or privileges 455 of [programs] a program described in Subsection (1)(f)(i)(A), because of: 456 (I) race; 457 (II) color; 458 (III) sex; 459 (IV) pregnancy, childbirth, or pregnancy-related conditions; 460 (V) religion; S.B. 262 03-01-13 7:31 AM - 16 - 461 (VI) national origin; 462 (VII) age, if the individual is 40 years of age or older; [or] 463 (VIII) disability; [or] 464 (IX) sexual orientation; or 465 (X) gender identity; or 466 [(C)] (D) except as provided in Subsection (1)(f)(ii), print, publish, or cause to be 467 printed or published, [any] a notice or advertisement relating to employment by the employer, 468 or membership in or [any] a classification or referral for employment by a labor organization, 469 or relating to [any] a classification or referral for employment by an employment agency, 470 indicating [any] a preference, limitation, specification, or discrimination based on: 471 (I) race; 472 (II) color; 473 (III) sex; 474 (IV) pregnancy, childbirth, or pregnancy-related conditions; 475 (V) religion; 476 (VI) national origin; 477 (VII) age, if the individual is 40 years of age or older; [or] 478 (VIII) disability[.]; 479 (IX) sexual orientation; or 480 (X) gender identity. 481 (ii) Notwithstanding Subsection (1)(f)(i)[(C)](D), if the following is a bona fide 482 occupational qualification for employment, a notice or advertisement described in Subsection 483 (1)(f)(i)[(C)](D) may indicate a preference, limitation, specification, or discrimination based 484 on: 485 (A) race; 486 (B) color; 487 (C) religion; 488 (D) sex; 489 (E) pregnancy, childbirth, or pregnancy-related conditions; 490 (F) age; 491 (G) national origin; [or] 03-01-13 7:31 AM S.B. 262 - 17 - 492 (H) disability[.]; 493 (I) sexual orientation; or 494 (J) gender identity. 495 (2) [Nothing contained in] Subsections (1)(a) through (1)(f) [shall] may not be 496 construed to prevent: 497 (a) the termination of employment of an individual who, with or without reasonable 498 accommodation, is physically, mentally, or emotionally unable to perform the duties required 499 by that individual's employment; 500 (b) the variance of insurance premiums or coverage on account of age; or 501 (c) a restriction on the activities [of individuals licensed by the liquor authority with 502 respect to persons] a person licensed in accordance with Title 32B, Alcoholic Beverage Control 503 Act, with respect to an individual who is under 21 years of age. 504 (3) (a) It is not a discriminatory or prohibited employment practice: 505 (i) for an employer to hire and employ [employees] an employee, for an employment 506 agency to classify or refer for employment [any] an individual, for a labor organization to 507 classify its membership or to classify or refer for employment [any] an individual, or for an 508 employer, labor organization, or joint labor-management committee controlling an 509 apprenticeship or other training or retraining [programs] program to admit or employ [any] an 510 individual in [any such] the program, on the basis of religion, sex, pregnancy, childbirth, or 511 pregnancy-related conditions, age, national origin, [or] disability, sexual orientation, or gender 512 identity in those certain instances [where] when religion, sex, pregnancy, childbirth, or 513 pregnancy-related conditions, age, if the individual is 40 years of age or older, national origin, 514 [or] disability, sexual orientation, or gender identity is a bona fide occupational qualification 515 reasonably necessary to the normal operation of that particular business or enterprise; 516 (ii) for a school, college, university, or other educational institution to hire and employ 517 [employees] an employee of a particular religion if: 518 (A) the school, college, university, or other educational institution is, in whole or in 519 substantial part, owned, supported, controlled, or managed by a particular religious corporation, 520 association, or society; or 521 (B) the curriculum of the school, college, university, or other educational institution is 522 directed toward the propagation of a particular religion; or S.B. 262 03-01-13 7:31 AM - 18 - 523 (iii) for an employer to give preference in employment to: 524 (A) the employer's: 525 (I) spouse; 526 (II) child; or 527 (III) son-in-law or daughter-in-law; 528 (B) [any] a person for whom the employer is or would be liable to furnish financial 529 support if [those persons] the person were unemployed; 530 (C) [any] a person to whom the employer during the preceding six months [has 531 furnished] furnishes more than one-half of total financial support regardless of whether or not 532 the employer was or is legally obligated to furnish support; or 533 (D) [any] a person whose education or training [was] is substantially financed by the 534 employer for a period of two years or more. 535 (b) Nothing in this chapter applies to [any] a business or enterprise on or near an Indian 536 reservation with respect to [any] a publicly announced employment practice of the business or 537 enterprise under which preferential treatment is given to [any] an individual because that 538 individual is a native American Indian living on or near an Indian reservation. 539 (c) Nothing in this chapter [shall] may be interpreted to require [any] an employer, 540 employment agency, labor organization, vocational school, joint labor-management committee, 541 or apprenticeship program subject to this chapter to grant preferential treatment to [any] a 542 individual or to [any] a group because of the race, color, religion, sex, age, national origin, [or] 543 disability, sexual orientation, or gender identity of the individual or group on account of an 544 imbalance [which] that may exist with respect to the total number or percentage of persons of 545 [any] a race, color, religion, sex, age, national origin, [or] disability, sexual orientation, or 546 gender identity employed by [any] an employer, referred or classified for employment by an 547 employment agency or labor organization, admitted to membership or classified by [any] a 548 labor organization, or admitted to or employed in, any apprenticeship or other training 549 program, in comparison with the total number or percentage of persons of that race, color, 550 religion, sex, age, national origin, [or] disability, sexual orientation, or gender identity in any 551 community or county or in the available work force in any community or county. 552 (4) It is not a discriminatory or prohibited practice with respect to age to observe the 553 terms of a bona fide seniority system or any bona fide employment benefit plan such as a 03-01-13 7:31 AM S.B. 262 - 19 - 554 retirement, pension, or insurance plan that is not a subterfuge to evade the purposes of this 555 chapter, except that [no such] an employee benefit plan [shall] may not excuse the failure to 556 hire an individual. 557 (5) Notwithstanding Subsection (4), or [any other statutory provision] another statute to 558 the contrary, a person may not be subject to involuntary termination or retirement from 559 employment on the basis of age alone, if the individual is 40 years of age or older, except: 560 (a) under Subsection (6); and 561 (b) when age is a bona fide occupational qualification. 562 (6) Nothing in this section prohibits compulsory retirement of an employee who has 563 attained at least 65 years of age, and who, for the two-year period immediately before 564 retirement, is employed in a bona fide executive or a high policymaking position, if: 565 (a) that employee is entitled to an immediate nonforfeitable annual retirement benefit 566 from the employee's employer's pension, profit-sharing, savings, or deferred compensation 567 plan, or any combination of those plans; and 568 (b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000. 569 (7) (a) This chapter may not be interpreted to prohibit an employer from requiring an 570 employee, during the employee's hours at work, to adhere to reasonable dress or grooming 571 standards not prohibited by other provisions of federal, state, or local law, if the employer 572 permits any employee who has undergone gender transition before the time of application for 573 employment, and any employee who notifies the employer that the employee has undergone or 574 is undergoing gender transition after the time of application for employment, to adhere to the 575 same dress or grooming standards for the gender to which the employee has transitioned or is 576 transitioning. 577 (b) For the purposes of this Subsection (7), if an employer has reason to believe that an 578 applicant's or employee's gender identity is not sincerely held, the employer may require the 579 applicant or employee to provide evidence of that gender identity. A person may prove the 580 person's gender identity by providing evidence, including medical history, care or treatment of 581 the gender identity, consistent and uniform assertion of the gender identity, or any other 582 evidence that the gender identity is sincerely held or not being asserted for an improper 583 purpose. 584 (8) (a) This chapter may not be interpreted to prohibit an employer from requiring an S.B. 262 03-01-13 7:31 AM - 20 - 585 employee, during the employee's hours at work, to use restrooms, shower facilities, or dressing 586 facilities that are consistent with the employee's gender identity. 587 (b) It is a discriminatory and prohibited employment practice to deny an employee 588 access to restrooms, shower facilities, or dressing facilities that are consistent with the 589 employee's gender identity, as established with the employer at the later of: 590 (i) the time of the application for employment; or 591 (ii) after notification to the employer that the employee has undergone or is undergoing 592 gender transition. 593 (c) For the purposes of this Subsection (8), if an employer has reason to believe that an 594 applicant's or employee's gender identity is not sincerely held, the employer may require the 595 applicant or employee to provide evidence of that gender identity. A person may prove the 596 person's gender identity by providing evidence, including medical history, care or treatment of 597 the gender identity, consistent and uniform assertion of the gender identity, or any other 598 evidence that the gender identity is sincerely held or not being asserted for an improper 599 purpose. 600 Section 5. Section 34A-5-107 is amended to read: 601 34A-5-107. Procedure for aggrieved person to file claim -- Investigations -- 602 Adjudicative proceedings -- Conciliation -- Reconsideration -- Determination. 603 (1) (a) [Any] A person claiming to be aggrieved by a discriminatory or prohibited 604 employment practice may, or that person's attorney or agent may, make, sign, and file with the 605 division a request for agency action. 606 (b) [Every] A request for agency action shall be verified under oath or affirmation. 607 (c) A request for agency action made under this section shall be filed within 180 days 608 after the alleged discriminatory or prohibited employment practice [occurred] occurs. 609 (d) The division may transfer a request for agency action filed with the division 610 pursuant to this section to the federal Equal Employment Opportunity Commission in 611 accordance with [the provisions of any] a work-share agreement that is: 612 (i) between the division and the Equal Employment Opportunity Commission; and 613 (ii) in effect on the day on which the request for agency action is transferred. 614 (2) [Any] An employer, labor organization, joint apprenticeship committee, or 615 vocational school who has an employee or member who refuses or threatens to refuse to 03-01-13 7:31 AM S.B. 262 - 21 - 616 comply with this chapter may file with the division a request for agency action asking the 617 division for assistance to obtain the employee's or member's compliance by conciliation or 618 other remedial action. 619 (3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the 620 division shall promptly assign an investigator to attempt a settlement between the parties by 621 conference, conciliation, or persuasion. 622 (b) If no settlement is reached, the investigator shall make a prompt impartial 623 investigation of all allegations made in the request for agency action. 624 (c) The division and its staff, agents, and employees: 625 (i) shall conduct every investigation in fairness to all parties and agencies involved; 626 and 627 (ii) may not attempt a settlement between the parties if it is clear that no discriminatory 628 or prohibited employment practice has occurred. 629 (d) An aggrieved party may withdraw the request for agency action prior to the 630 issuance of a final order. 631 (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator 632 uncovers insufficient evidence during the investigation to support the allegations of a 633 discriminatory or prohibited employment practice set out in the request for agency action, the 634 investigator shall formally report these findings to the director or the director's designee. 635 (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director 636 or the director's designee may issue a determination and order for dismissal of the adjudicative 637 proceeding. 638 (c) A party may make a written request to the Division of Adjudication for an 639 evidentiary hearing to review de novo the director's or the director's designee's determination 640 and order within 30 days of the date the determination and order for dismissal is issued. 641 (d) If the director or the director's designee receives no timely request for a hearing, the 642 determination and order issued by the director or the director's designee becomes the final order 643 of the commission. 644 (5) (a) If the initial attempts at settlement are unsuccessful and the investigator 645 uncovers sufficient evidence during the investigation to support the allegations of a 646 discriminatory or prohibited employment practice set out in the request for agency action, the S.B. 262 03-01-13 7:31 AM - 22 - 647 investigator shall formally report these findings to the director or the director's designee. 648 (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the 649 director or the director's designee may issue a determination and order based on the 650 investigator's report. 651 (ii) A determination and order issued under this Subsection (5)(b) shall: 652 (A) direct the respondent to cease any discriminatory or prohibited employment 653 practice; and 654 (B) provide relief to the aggrieved party as the director or the director's designee 655 determines is appropriate. 656 (c) A party may file a written request to the Division of Adjudication for an evidentiary 657 hearing to review de novo the director's or the director's designee's determination and order 658 within 30 days of the date the determination and order is issued. 659 (d) If the director or the director's designee receives no timely request for a hearing, the 660 determination and order issued by the director or the director's designee in accordance with 661 Subsection (5)(b) becomes the final order of the commission. 662 (6) In [any] an adjudicative proceeding to review the director's or the director's 663 designee's determination that a prohibited employment practice has occurred, the division shall 664 present the factual and legal basis of the determination or order issued under Subsection (5). 665 (7) (a) [Prior to] Before the commencement of an evidentiary hearing: 666 (i) the party filing the request for agency action may reasonably and fairly amend any 667 allegation; and 668 (ii) the respondent may amend its answer. 669 (b) An amendment permitted under this Subsection (7) may be made: 670 (i) during or after a hearing; and 671 (ii) only with permission of the presiding officer. 672 (8) (a) If, upon all the evidence at a hearing, the presiding officer finds that a 673 respondent has not engaged in a discriminatory or prohibited employment practice, the 674 presiding officer shall issue an order dismissing the request for agency action containing the 675 allegation of a discriminatory or prohibited employment practice. 676 (b) The presiding officer may order that the respondent be reimbursed by the 677 complaining party for the respondent's [attorneys'] attorney fees and costs. 03-01-13 7:31 AM S.B. 262 - 23 - 678 (9) If upon all the evidence at the hearing, the presiding officer finds that a respondent 679 has engaged in a discriminatory or prohibited employment practice, the presiding officer shall 680 issue an order requiring the respondent to: 681 (a) cease [any] a discriminatory or prohibited employment practice; and 682 (b) provide relief to the complaining party, including: 683 (i) reinstatement; 684 (ii) back pay and benefits; 685 (iii) [attorneys'] attorney fees; and 686 (iv) costs. 687 (10) Conciliation between the parties is to be urged and facilitated at all stages of the 688 adjudicative process. 689 (11) (a) Either party may file with the Division of Adjudication a written request for 690 review before the commissioner or Appeals Board of the order issued by the presiding officer 691 in accordance with: 692 (i) Section 63G-4-301; and 693 (ii) Chapter 1, Part 3, Adjudicative Proceedings. 694 (b) If there is no timely request for review, the order issued by the presiding officer 695 becomes the final order of the commission. 696 (12) An order of the commission under Subsection (11)(a) is subject to judicial review 697 as provided in: 698 (a) Section 63G-4-403; and 699 (b) Chapter 1, Part 3, Adjudicative Proceedings. 700 (13) The commission [shall have authority to] may make rules concerning procedures 701 under this chapter in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking 702 Act. 703 (14) The commission and its staff may not divulge or make public [any] information 704 gained from [any] an investigation, settlement negotiation, or proceeding before the 705 commission except as provided in Subsections (14)(a) through (d). 706 (a) Information used by the director or the director's designee in making [any] a 707 determination may be provided to all interested parties for the purpose of preparation for and 708 participation in proceedings before the commission. S.B. 262 03-01-13 7:31 AM - 24 - 709 (b) General statistical information may be disclosed provided the identities of the 710 individuals or parties are not disclosed. 711 (c) Information may be disclosed for inspection by the attorney general or other legal 712 representatives of the state or the commission. 713 (d) Information may be disclosed for information and reporting requirements of the 714 federal government. 715 (15) The procedures contained in this section are the exclusive remedy under state law 716 for employment discrimination based upon: 717 (a) race; 718 (b) color; 719 (c) sex; 720 (d) retaliation; 721 (e) pregnancy, childbirth, or pregnancy-related conditions; 722 (f) age; 723 (g) religion; 724 (h) national origin; [or] 725 (i) disability[.]; 726 (j) sexual orientation; or 727 (k) gender identity. 728 (16) (a) The commencement of an action under federal law for relief based upon [any] 729 an act prohibited by this chapter bars the commencement or continuation of [any] an 730 adjudicative proceeding before the commission in connection with the same [claims] claim 731 under this chapter. 732 (b) The transfer of a request for agency action to the Equal Employment Opportunity 733 Commission in accordance with Subsection (1)(d) is considered the commencement of an 734 action under federal law for purposes of Subsection (16)(a). 735 (c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair the 736 exclusive remedy provision set forth in Subsection (15). 737 Section 6. Section 57-21-2 is amended to read: 738 57-21-2. Definitions. 739 As used in this chapter: 03-01-13 7:31 AM S.B. 262 - 25 - 740 (1) "Affiliate" is as defined in Section 16-6a-102. 741 [(1)] (2) "Aggrieved person" includes [any] a person who: 742 (a) claims to have been injured by a discriminatory housing practice; or 743 (b) believes that the person will be injured by a discriminatory housing practice that is 744 about to occur. 745 [(2)] (3) "Commission" means the Labor Commission. 746 [(3)] (4) "Complainant" means an aggrieved person, including the director, who has 747 commenced a complaint with the division. 748 [(4)] (5) "Conciliation" means the attempted resolution of [issues] an issue raised [by] 749 in a complaint of discriminatory housing practices by the investigation of the complaint 750 through informal negotiations involving the complainant, the respondent, and the division. 751 [(5)] (6) "Conciliation agreement" means a written agreement setting forth the 752 resolution of the issues in conciliation. 753 [(6)] (7) "Conciliation conference" means the attempted resolution of [issues] an issue 754 raised [by] in a complaint [or] by the investigation of a complaint through informal 755 negotiations involving the complainant, the respondent, and the division. The conciliation 756 conference is not subject to Title 63G, Chapter 4, Administrative Procedures Act. 757 [(7)] (8) "Covered multifamily [dwellings"] dwelling" means: 758 (a) buildings consisting of four or more dwelling units if the buildings have one or 759 more elevators; and 760 (b) ground floor units in other buildings consisting of four or more dwelling units. 761 [(8)] (9) "Director" means the director of the division or a designee. 762 [(9)] (10) (a) "Disability" means a physical or mental impairment that substantially 763 limits one or more of a person's major life activities, including a person having a record of such 764 an impairment or being regarded as having such an impairment. 765 (b) "Disability" does not include current illegal use of, or addiction to, any federally 766 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 767 Sec. 802. 768 [(10)] (11) "Discriminate" includes segregate or separate. 769 [(11)] (12) "Discriminatory housing practice" means an act that is unlawful under this 770 chapter. S.B. 262 03-01-13 7:31 AM - 26 - 771 [(12)] (13) "Division" means the Division of Antidiscrimination and Labor established 772 under the commission. 773 [(13) (a)] (14) "Dwelling" means [any]: 774 (a) a building or structure, or a portion of a building or structure, occupied as, [or] 775 designed as, or intended for occupancy as, a residence of one or more families[.]; or 776 (b) ["Dwelling" also includes] vacant land that is offered for sale or lease for the 777 construction or location of a dwelling as described in Subsection [(13)] (14)(a). 778 [(14)] (15) (a) "Familial status" means one or more individuals who have not attained 779 the age of 18 years being domiciled with: 780 (i) a parent or another person having legal custody of the [individual] one or more 781 individuals; or 782 (ii) the designee of the parent or other person having custody, with the written 783 permission of the parent or other person. 784 (b) The protections afforded against discrimination on the basis of familial status [shall 785 apply to any] applies to a person who: 786 (i) is pregnant; 787 (ii) is in the process of securing legal custody of any individual who has not attained 788 the age of 18 years; or 789 (iii) is a single individual. 790 (16) "Gender identity" means an individual's internal sense of gender, without regard to 791 the individual's designated sex at birth. Evidence of gender identity may include an 792 individual's self-identification, as well as the individual's gender-related appearance, 793 mannerisms, and other gender-related characteristics. 794 [(15)] (17) "National origin" means the place of birth of an individual or of any lineal 795 ancestors. 796 [(16)] (18) "Person" includes one or more: 797 (a) individuals[,]; 798 (b) corporations[,]; 799 (c) limited liability companies[,]; 800 (d) partnerships[,]; 801 (e) associations[,]; 03-01-13 7:31 AM S.B. 262 - 27 - 802 (f) labor organizations[,]; 803 (g) legal representatives[,]; 804 (h) mutual companies[,]; 805 (i) joint-stock companies[,]; 806 (j) trusts[,]; 807 (k) unincorporated organizations[,]; 808 (l) trustees[,]; 809 (m) trustees in cases under the United States Bankruptcy Code[,]; 810 (n) receivers[,]; and 811 (o) fiduciaries. 812 [(17)] (19) "Presiding officer" has the same meaning as provided in Section 813 63G-4-103. 814 [(18)] (20) "Real estate broker" or "salesperson" means a principal broker, an associate 815 broker, or a sales agent as those terms are defined in Section 61-2f-102. 816 [(19)] (21) "Respondent" means a person against whom a complaint of housing 817 discrimination has been initiated. 818 [(20)] (22) "Sex" means gender and includes pregnancy, childbirth, and disabilities 819 related to pregnancy or childbirth. 820 (23) "Sexual orientation" means an individual's actual or perceived orientation as 821 heterosexual, homosexual, or bisexual. 822 [(21)] (24) "Source of income" means the verifiable condition of being a recipient of 823 federal, state, or local assistance, including medical assistance, or of being a tenant receiving 824 federal, state, or local subsidies, including rental assistance or rent supplements. 825 Section 7. Section 57-21-3 is amended to read: 826 57-21-3. Exemptions. 827 (1) This chapter does not apply to [any] a single-family dwelling unit sold or rented by 828 its owner if: 829 (a) the owner is not a partnership, association, corporation, or other business entity; 830 (b) the owner does not own [any] an interest in four or more single-family dwelling 831 units held for sale or lease at the same time; 832 (c) during a 24-month period, the owner does not sell two or more single-family S.B. 262 03-01-13 7:31 AM - 28 - 833 dwelling units in which the owner was not residing or was not the most recent resident at the 834 time of sale; 835 (d) the owner does not retain or use the facilities or services of [any] a real estate 836 broker or salesperson; and 837 (e) the owner does not use [any] a discriminatory housing practice under Subsection 838 57-21-5(2) in the sale or rental of the dwelling. 839 (2) This chapter does not apply to a temporary or permanent residence facility, 840 approved, operated, or owned by a nonprofit [or] organization, a charitable organization, or a 841 person in conjunction with a religious organization, association, society, or its affiliates, 842 including [any dormitory operated] a residence facility approved, operated, or owned by a 843 public or private educational institution, if the discrimination is by sex, sexual orientation, 844 gender identity, or familial status: 845 (a) for reasons of personal modesty or privacy; or 846 (b) in the furtherance of a religious institution's free exercise of religious rights under 847 the First Amendment of the [United States] Constitution of the United States or the Utah 848 Constitution. 849 (3) This chapter, except for Subsection 57-21-5(2), does not apply to the rental of a 850 room in [the] a single family dwelling by an owner-occupant of [a] the single-family dwelling 851 to another person if: 852 (a) the dwelling is designed for occupancy by four or fewer families[,]; and 853 (b) the owner-occupant resides in one of the units. 854 (4) [This] Unless membership in a religion is restricted by race, color, sex, or national 855 origin, this chapter does not prohibit a religious organization, association, or society, or [any] a 856 nonprofit institution or organization operated, supervised, or controlled by or in conjunction 857 with a religious organization, association, or society, from: 858 (a) limiting the sale, rental, or occupancy of [dwellings] a dwelling it owns or operates 859 for primarily noncommercial purposes to persons of the same religion[,]; or [from] 860 (b) giving preference to [such] persons[, unless membership in the religion is restricted 861 by race, color, sex, or national origin] of the same religion. 862 (5) [This] (a) If the conditions of Subsection (5)(b) are met, this chapter does not 863 prohibit a private club not open to the public, including [fraternities and sororities] a fraternity 03-01-13 7:31 AM S.B. 262 - 29 - 864 or sorority associated with [institutions] an institution of higher education, from: 865 (i) limiting the rental or occupancy of lodgings to members; or [from] 866 (ii) giving preference to its members[, but]. 867 (b) This Subsection (5) applies only if [it] a private club owns or operates the lodgings 868 as an incident to its primary purpose and not for a commercial purpose. 869 (6) This chapter does not prohibit distinctions based on inability to fulfill the terms and 870 conditions, including financial obligations, of: 871 (a) a lease[,]; 872 (b) a rental agreement[,]; 873 (c) a contract of purchase or sale[,]; 874 (d) a mortgage[,]; 875 (e) a trust deed[, or other]; or 876 (f) another financing agreement. 877 (7) This chapter does not prohibit [any] a nonprofit educational institution from: 878 (a) requiring its single students to live in housing approved, operated, or owned by the 879 nonprofit educational institution; 880 (b) segregating housing that the nonprofit educational institution approves, operates, or 881 owns on the basis of sex or familial status or both: 882 (i) for reasons of personal modesty or privacy[,]; or 883 (ii) in the furtherance of a religious institution's free exercise of religious rights under 884 the First Amendment of the [United States] Constitution of the United States; or 885 (c) otherwise assisting [others] another person in making sex-segregated housing 886 available to students as may be permitted by regulations implementing the federal Fair Housing 887 Amendments Act of 1988 and Title IX of the Education Amendments of 1972. 888 (8) This chapter does not prohibit [any] a reasonable local, state, or federal 889 [restrictions] restriction regarding the maximum number of occupants permitted to occupy a 890 dwelling. 891 (9) [The provisions pertaining] A provision of this chapter that pertains to familial 892 status [do] does not apply to the existence, development, sale, rental, advertisement, or 893 financing of [any] an apartment complex, condominium, or other housing development 894 designated as housing for older persons, as defined by Title VIII of the Civil Rights Act of S.B. 262 03-01-13 7:31 AM - 30 - 895 1968, as amended. 896 Section 8. Section 57-21-5 is amended to read: 897 57-21-5. Discriminatory practices enumerated. 898 (1) It is a discriminatory housing practice to do any of the following because of a 899 person's race, color, religion, sex, national origin, familial status, source of income, [or] 900 disability, sexual orientation, or gender identity: 901 (a) (i) refuse to sell or rent after the making of a bona fide offer[,]; 902 (ii) refuse to negotiate for the sale or rental[,]; or 903 (iii) otherwise deny or make unavailable [any] a dwelling from any person; 904 (b) discriminate against [any] a person in the terms, conditions, or privileges: 905 (i) of the sale or rental of [any] a dwelling; or 906 (ii) in providing facilities or services in connection with the dwelling; or 907 (c) represent to [any] a person that [any] a dwelling is not available for inspection, sale, 908 or rental when [in fact] the dwelling is available. 909 (2) It is a discriminatory housing practice: 910 (a) to: 911 (i) make a representation orally or in writing; [or] 912 (ii) make, print, circulate, publish, post, or cause to be made, printed, circulated, 913 published, or posted [any] a notice, statement, or advertisement[,]; or [to] 914 (iii) use any application form for the sale or rental of a dwelling[, that]; and 915 (b) if the action described in Subsection (2)(a) directly or indirectly expresses [any]: 916 (i) a preference, limitation, or discrimination based on race, color, religion, sex, 917 national origin, familial status, source of income, [or] disability, sexual orientation, or gender 918 identity; or [expresses any] 919 (ii) an intent to make [any such] a preference, limitation, or discrimination described in 920 Subsection (2)(b)(i). 921 (3) It is a discriminatory housing practice to induce or attempt to induce, for profit, 922 [any] a person to buy, sell, or rent [any] a dwelling by making [representations] a 923 representation about the entry or prospective entry into the neighborhood of one or more 924 persons of a particular race, color, religion, sex, national origin, familial status, source of 925 income, [or] disability, sexual orientation, or gender identity. 03-01-13 7:31 AM S.B. 262 - 31 - 926 (4) A discriminatory housing practice includes: 927 (a) a refusal to permit, at the expense of the person with a disability, reasonable 928 modifications of existing premises occupied or to be occupied by the person if the 929 modifications are necessary to afford that person full enjoyment of the premises, except that in 930 the case of a rental, the landlord, where it is reasonable to do so, may condition permission for 931 a modification on the renter agreeing to restore the interior of the premises, when reasonable, to 932 the condition that existed before the modification, reasonable wear and tear excepted; 933 (b) a refusal to make a reasonable [accommodations in rules, policies, practices, or 934 services when the accommodations] accommodation in a rule, policy, practice, or service if the 935 accommodation may be necessary to afford the person equal opportunity to use and enjoy a 936 dwelling; and 937 (c) in connection with the design and construction of covered multifamily dwellings for 938 first occupancy after March 13, 1991, a failure to design and construct [those] the covered 939 multifamily dwellings in a manner that: 940 (i) the covered multifamily dwellings have at least one building entrance on an 941 accessible route, unless it is impracticable to have one because of the terrain or unusual 942 characteristics of the site; and 943 (ii) with respect to covered multifamily dwellings with a building entrance on an 944 accessible route: 945 (A) the public use and common use portions of the covered multifamily dwelling are 946 readily accessible to and usable by a person with a disability; 947 (B) all the doors designed to allow passage into and within the covered multifamily 948 dwellings are sufficiently wide to allow passage by a person with a disability who is in a 949 wheelchair; and 950 (C) all premises within these covered multifamily dwellings contain the following 951 features of adaptive design: 952 (I) an accessible route into and through the covered multifamily dwelling; 953 (II) light switches, electrical outlets, thermostats, and other environmental controls in 954 accessible locations; 955 (III) reinforcements in the bathroom walls to allow later installation of grab bars; and 956 (IV) kitchens and bathrooms such that an individual in a wheelchair can maneuver S.B. 262 03-01-13 7:31 AM - 32 - 957 about and use the space. 958 (5) This section also applies to discriminatory housing practices because of race, color, 959 religion, sex, national origin, familial status, source of income, [or] disability, sexual 960 orientation, or gender identity based upon a person's association with another person. 961 Section 9. Section 57-21-6 is amended to read: 962 57-21-6. Discriminatory housing practices regarding residential real 963 estate-related transactions -- Discriminatory housing practices regarding the provisions 964 of brokerage services. 965 (1) (a) It is a discriminatory housing practice for [any] a person whose business 966 includes engaging in residential real estate-related transactions to discriminate against [any] a 967 person in making available [such] a residential real estate-related transaction, or in the terms or 968 conditions of the residential real estate-related transaction, because of race, color, religion, sex, 969 disability, familial status, source of income, [or] national origin, sexual orientation, or gender 970 identity. 971 (b) Residential real estate-related transactions include: 972 [(a)] (i) making or purchasing loans or providing other financial assistance: 973 [(i)] (A) for purchasing, constructing, improving, repairing, or maintaining a dwelling; 974 or 975 [(ii)] (B) secured by residential real estate; or 976 [(b)] (ii) selling, brokering, or appraising residential real property. 977 (2) It is a discriminatory housing practice to, because of race, color, religion, sex, 978 disability, familial status, source of income, national origin, sexual orientation, or gender 979 identity: 980 (a) deny [any] a person access to, or membership or participation in, [any] a 981 multiple-listing service, real estate brokers' organization, or other service, organization, or 982 facility relating to the business of selling or renting dwellings; or [to] 983 (b) discriminate against [any] a person in the terms or conditions of access, 984 membership, or participation in the organization, service, or facility [because of race, color, 985 religion, sex, disability, familial status, source of income, or national origin]. 986 (3) This section also applies to a discriminatory housing [practices] practice because of 987 race, color, religion, sex, national origin, familial status, source of income, [or] disability, 03-01-13 7:31 AM S.B. 262 - 33 - 988 sexual orientation, or gender identity based upon a person's association with another person. 989 Section 10. Section 57-21-7 is amended to read: 990 57-21-7. Prohibited conduct -- Aiding or abetting in discriminatory actions -- 991 Obstruction of division investigation -- Reprisals. 992 (1) It is a discriminatory housing practice to do any of the following: 993 (a) coerce, intimidate, threaten, or interfere with [any] a person: 994 (i) in the exercise or enjoyment of [any] a right granted or protected under this chapter; 995 (ii) because that person exercised [any] a right granted or protected under this chapter; 996 or 997 (iii) because that person aided or encouraged any other person in the exercise or 998 enjoyment of [any] a right granted or protected under this chapter; 999 (b) aid, abet, incite, compel, or coerce a person to engage in [any of the practices] a 1000 practice prohibited by this chapter; 1001 (c) attempt to aid, abet, incite, compel, or coerce a person to engage in [any of the 1002 practices] a practice prohibited by this chapter; 1003 (d) obstruct or prevent [any] a person from complying with this chapter, or any order 1004 issued under this chapter; 1005 (e) resist, prevent, impede, or interfere with the director or [any] a division [employees 1006 or representatives] employee or representative in the performance of duty under this chapter; or 1007 (f) engage in any reprisal against [any] a person because that person: 1008 (i) opposed a practice prohibited under this chapter; or 1009 (ii) filed a complaint, testified, assisted, or participated in any manner in [any] an 1010 investigation, proceeding, or hearing under this chapter. 1011 (2) This section also applies to discriminatory housing practices because of race, color, 1012 religion, sex, national origin, familial status, source of income, [or] disability, sexual 1013 orientation, or gender identity based upon a person's association with another person. Legislative Review Note as of 2-28-13 12:53 PM Office of Legislative Research and General Counsel