Text of UT SB 296 (2015)

S.B. 296 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: E.N. Weeks 6 6 03-04-15 9:09 AM 6 S.B. 296 1 ANTIDISCRIMINATION AND RELIGIOUS FREEDOM 2 AMENDMENTS 3 2015 GENERAL SESSION 4 STATE OF UTAH 5 Chief Sponsors: Stephen H. Urquhart and J. Stuart Adams 6 House Sponsor: Brad L. Dee 7 8 LONG TITLE 9 General Description: 10 This bill modifies the Utah Antidiscrimination Act and the Utah Fair Housing Act to 11 address discrimination and religious freedoms. 12 Highlighted Provisions: 13 This bill: 14 < modifies definition provisions related to employment and housing discrimination, 15 including defining "employer," "gender identity," and "sexual orientation"; 16 < includes sexual orientation and gender identity as prohibited bases for 17 discrimination in employment; 18 < provides that the remedies in the Utah Antidiscrimination Act and the Utah Fair 19 Housing Act preempt local government remedies; 20 < provides that protections for employment and housing do not create a special or 21 protected class for other purposes; 22 < modifies powers of the Division of Antidiscrimination and Labor; 23 < addresses the Utah Antidiscrimination Act's application to: 24 C employee dress and grooming standards; 25 C sex-specific facilities; and 26 C freedom of expressive association and the free exercise of religion; 27 < addresses employee free speech in the workplace; *SB0296* S.B. 296 03-04-15 9:09 AM - 2 - 28 < prohibits an employer from taking certain actions in response to certain employee 29 speech outside the workplace; 30 < modifies exemptions to the Utah Fair Housing Act; 31 < includes sexual orientation and gender identity as prohibited bases for 32 discrimination in housing; 33 < includes nonseverability clauses; and 34 < makes technical and conforming amendments. 35 Money Appropriated in this Bill: 36 None 37 Other Special Clauses: 38 This bill provides revisor instructions. 39 Utah Code Sections Affected: 40 AMENDS: 41 34A-5-102, as last amended by Laws of Utah 2011, Chapter 413 42 34A-5-104, as last amended by Laws of Utah 2012, Chapter 369 43 34A-5-106, as last amended by Laws of Utah 2013, Chapter 278 44 34A-5-107, as last amended by Laws of Utah 2008, Chapter 382 45 57-21-2, as last amended by Laws of Utah 2010, Chapter 379 46 57-21-3, as last amended by Laws of Utah 1993, Chapter 114 47 57-21-5, as last amended by Laws of Utah 2011, Chapter 366 48 57-21-6, as last amended by Laws of Utah 1993, Chapter 114 49 57-21-7, as last amended by Laws of Utah 1993, Chapter 114 50 57-21-12, as last amended by Laws of Utah 1999, Chapter 160 51 ENACTS: 52 34A-5-102.5, Utah Code Annotated 1953 53 34A-5-102.7, Utah Code Annotated 1953 54 34A-5-109, Utah Code Annotated 1953 55 34A-5-110, Utah Code Annotated 1953 56 34A-5-111, Utah Code Annotated 1953 57 34A-5-112, Utah Code Annotated 1953 58 57-21-2.5, Utah Code Annotated 1953 03-04-15 9:09 AM S.B. 296 - 3 - 59 57-21-2.7, Utah Code Annotated 1953 60 Utah Code Sections Affected by Revisor Instructions: 61 34A-5-102.7, Utah Code Annotated 1953 62 57-21-2.7, Utah Code Annotated 1953 63 64 Be it enacted by the Legislature of the state of Utah: 65 Section 1. Section 34A-5-102 is amended to read: 66 34A-5-102. Definitions -- Unincorporated entities. 67 (1) As used in this chapter: 68 (a) "Affiliate" means the same as that term is defined in Section 16-6a-102. 69 [(a)] (b) "Apprenticeship" means a program for the training of apprentices including a 70 program providing the training of those persons defined as apprentices by Section 35A-6-102. 71 [(b)] (c) "Bona fide occupational qualification" means a characteristic applying to an 72 employee that: 73 (i) is necessary to the operation; or 74 (ii) is the essence of the employee's employer's business. 75 [(c)] (d) "Court" means: 76 (i) the district court in the judicial district of the state in which the asserted unfair 77 employment practice [occurred] occurs; or 78 (ii) if [this] the district court is not in session at that time, a judge of the court described 79 in Subsection (1)[(c)](d)(i). 80 [(d)] (e) "Director" means the director of the division. 81 [(e)] (f) "Disability" means a physical or mental disability as defined and covered by 82 the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102. 83 [(f)] (g) "Division" means the Division of Antidiscrimination and Labor. 84 [(g)] (h) "Employee" means [any] a person applying with or employed by an employer. 85 [(h)] (i) (i) "Employer" means: 86 (A) the state; 87 (B) [any] a political subdivision; 88 (C) a board, commission, department, institution, school district, trust, or agent of the 89 state or [its] a political [subdivisions] subdivision of the state; or S.B. 296 03-04-15 9:09 AM - 4 - 90 (D) a person employing 15 or more employees within the state for each working day in 91 each of 20 calendar weeks or more in the current or preceding calendar year. 92 (ii) "Employer" does not include: 93 (A) a religious organization [or association], a religious corporation sole, a religious 94 association, a religious society, a religious educational institution, or a religious leader, when 95 that individual is acting in the capacity of a religious leader; 96 [(B) a religious corporation sole; or] 97 [(C)] (B) any corporation or association constituting an affiliate, a wholly owned 98 subsidiary, or an agency of any religious organization [or association or religious corporation 99 sole.], religious corporation sole, religious association, or religious society; or 100 (C) the Boy Scouts of America or its councils, chapters, or subsidiaries. 101 [(i)] (j) "Employment agency" means [any] a person: 102 (i) undertaking to procure employees or opportunities to work for any other person; or 103 (ii) holding the person out to be equipped to take an action described in Subsection 104 (1)[(i)](j)(i). 105 (k) "Gender identity" has the meaning provided in the Diagnostic and Statistical 106 Manual (DSM-5). A person's gender identity can be shown by providing evidence, including, 107 but not limited to, medical history, care or treatment of the gender identity, consistent and 108 uniform assertion of the gender identity, or other evidence that the gender identity is sincerely 109 held, part of a person's core identity, and not being asserted for an improper purpose. 110 [(j)] (l) "Joint apprenticeship committee" means [any] an association of representatives 111 of a labor organization and an employer providing, coordinating, or controlling an apprentice 112 training program. 113 [(k)] (m) "Labor organization" means [any] an organization that exists for the purpose 114 in whole or in part of: 115 (i) collective bargaining; 116 (ii) dealing with employers concerning grievances, terms or conditions of employment; 117 or 118 (iii) other mutual aid or protection in connection with employment. 119 [(l)] (n) "National origin" means the place of birth, domicile, or residence of an 120 individual or of an individual's ancestors. 03-04-15 9:09 AM S.B. 296 - 5 - 121 [(m)] (o) "On-the-job-training" means [any] a program designed to instruct a person 122 who, while learning the particular job for which the person is receiving instruction: 123 (i) is also employed at that job; or 124 (ii) may be employed by the employer conducting the program during the course of the 125 program, or when the program is completed. 126 [(n)] (p) "Person" means: 127 (i) one or more individuals, partnerships, associations, corporations, legal 128 representatives, trusts or trustees, or receivers[,]; 129 (ii) the state; and [all political subdivisions and agencies of the state.] 130 (iii) a political subdivision of the state. 131 [(o)] (q) "Presiding officer" means the same as that term is defined in Section 132 63G-4-103. 133 [(p)] (r) "Prohibited employment practice" means a practice specified as 134 discriminatory, and therefore unlawful, in Section 34A-5-106. 135 (s) "Religious leader" means an individual who is associated with, and is an authorized 136 representative of, a religious organization or association or a religious corporation sole, 137 including a member of clergy, a minister, a pastor, a priest, a rabbi, an imam, or a spiritual 138 advisor. 139 [(q)] (t) "Retaliate" means the taking of adverse action by an employer, employment 140 agency, labor organization, apprenticeship program, on-the-job training program, or vocational 141 school against one of its employees, applicants, or members because the employee, applicant, 142 or member [has]: 143 (i) [opposed any] opposes an employment practice prohibited under this chapter; or 144 (ii) [filed charges, testified, assisted, or participated] files charges, testifies, assists, or 145 participates in any way in [any] a proceeding, investigation, or hearing under this chapter. 146 (u) "Sexual orientation" means an individual's actual or perceived orientation as 147 heterosexual, homosexual, or bisexual. 148 [(r)] (v) "Unincorporated entity" means an entity organized or doing business in the 149 state that is not: 150 (i) an individual; 151 (ii) a corporation; or S.B. 296 03-04-15 9:09 AM - 6 - 152 (iii) publicly traded. 153 [(s)] (w) "Vocational school" means [any] a school or institution conducting a course 154 of instruction, training, or retraining to prepare individuals to follow an occupation or trade, or 155 to pursue a manual, technical, industrial, business, commercial, office, personal services, or 156 other nonprofessional occupations. 157 (2) (a) For purposes of this chapter, an unincorporated entity that is required to be 158 licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to 159 be the employer of each individual who, directly or indirectly, holds an ownership interest in 160 the unincorporated entity. 161 (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3, 162 Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption 163 under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that 164 the individual: 165 (i) is an active manager of the unincorporated entity; 166 (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated 167 entity; or 168 (iii) is not subject to supervision or control in the performance of work by: 169 (A) the unincorporated entity; or 170 (B) a person with whom the unincorporated entity contracts. 171 (c) As part of the rules made under Subsection (2)(b), the commission may define: 172 (i) "active manager"; 173 (ii) "directly or indirectly holds at least an 8% ownership interest"; and 174 (iii) "subject to supervision or control in the performance of work." 175 Section 2. Section 34A-5-102.5 is enacted to read: 176 34A-5-102.5. Supremacy over local regulations -- No special class created for 177 other purposes. 178 (1) Consistent with the requirements of Subsection 34A-5-107(15), this chapter 179 supersedes and preempts any ordinance, regulation, standard, or other legal action by a local 180 government entity, a state entity, or the governing body of a political subdivision that relates to 181 the prohibition of discrimination in employment. 182 (2) This chapter shall not be construed to create a special or protected class for any 03-04-15 9:09 AM S.B. 296 - 7 - 183 purpose other than employment. 184 Section 3. Section 34A-5-102.7 is enacted to read: 185 34A-5-102.7. Nonseverability. 186 This bill is the result of the Legislature's balancing of competing interests. 187 Accordingly, if any phrase, clause, sentence, provision, or subsection enacted or amended in 188 this chapter by this bill is held invalid in a final judgment by a court of last resort, the 189 remainder of the enactments and amendments of this bill affecting this chapter shall be thereby 190 rendered without effect and void. 191 Section 4. Section 34A-5-104 is amended to read: 192 34A-5-104. Powers. 193 (1) (a) The commission has jurisdiction over the subject of employment practices and 194 discrimination made unlawful by this chapter. 195 (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and 196 for the enforcement of this chapter. 197 (2) The division may: 198 (a) appoint and prescribe the duties of [investigators and other employees and agents 199 that it] an investigator, other employee, or agent of the commission that the commission 200 considers necessary for the enforcement of this chapter; 201 (b) receive, reject, investigate, and pass upon complaints alleging: 202 (i) discrimination in: 203 (A) employment; 204 (B) an apprenticeship [programs] program; 205 (C) an on-the-job training [programs] program; [and] or 206 (D) a vocational [schools] school; or 207 (ii) the existence of a discriminatory or prohibited employment practice by: 208 (A) a person; 209 (B) an employer; 210 (C) an employment agency; 211 (D) a labor organization; 212 (E) [the employees or members] an employee or member of an employment agency or 213 labor organization; S.B. 296 03-04-15 9:09 AM - 8 - 214 (F) a joint apprenticeship committee; and 215 (G) a vocational school; 216 (c) investigate and study the existence, character, causes, and extent of discrimination 217 in employment, apprenticeship programs, on-the-job training programs, and vocational schools 218 in this state by: 219 (i) employers; 220 (ii) employment agencies; 221 (iii) labor organizations; 222 (iv) joint apprenticeship committees; and 223 (v) vocational schools; 224 (d) formulate plans for the elimination of discrimination by educational or other 225 means; 226 (e) hold hearings upon complaint made against: 227 (i) a person; 228 (ii) an employer; 229 (iii) an employment agency; 230 (iv) a labor organization; 231 (v) [the employees or members] an employee or member of an employment agency or 232 labor organization; 233 (vi) a joint apprenticeship committee; or 234 (vii) a vocational school; 235 (f) issue publications and reports of investigations and research that: 236 (i) promote good will among the various racial, religious, and ethnic groups of the 237 state; and 238 (ii) minimize or eliminate discrimination in employment because of race, color, sex, 239 religion, national origin, age, [or] disability, sexual orientation, or gender identity; 240 (g) prepare and transmit to the governor, at least once each year, reports describing: 241 (i) [its] the division's proceedings, investigations, and hearings; 242 (ii) the outcome of those hearings; 243 (iii) decisions the division [has rendered] renders; and 244 (iv) the other work performed by the division; 03-04-15 9:09 AM S.B. 296 - 9 - 245 (h) recommend policies to the governor, and submit recommendation to employers, 246 employment agencies, and labor organizations to implement those policies; 247 (i) recommend [any] legislation to the governor that the division considers necessary 248 concerning discrimination because of: 249 (i) race[,]; 250 (ii) sex[,]; 251 (iii) color[,]; 252 (iv) national origin[,]; 253 (v) religion[,]; 254 (vi) age[, or]; 255 (vii) disability [to the governor that it considers necessary; and]; 256 (viii) sexual orientation; or 257 (ix) gender identity; and 258 (j) within the limits of [any] appropriations made for its operation, cooperate with other 259 agencies or organizations, both public and private, in the planning and conducting of 260 educational programs designed to eliminate discriminatory practices prohibited under this 261 chapter. 262 (3) The division shall investigate an alleged discriminatory [practices] practice 263 involving [officers or employees] an officer or employee of state government if requested to do 264 so by the Career Service Review Office. 265 (4) (a) In [any] a hearing held under this chapter, the division may: 266 (i) subpoena witnesses and compel their attendance at the hearing; 267 (ii) administer oaths and take the testimony of [any] a person under oath; and 268 (iii) compel [any] a person to produce for examination [any books, papers] a book, 269 paper, or other information relating to the matters raised by the complaint. 270 (b) The division director or a hearing examiner appointed by the division director may 271 conduct [hearings] a hearing. 272 (c) If a witness fails or refuses to obey a subpoena issued by the division, the division 273 may petition the district court to enforce the subpoena. 274 (d) [In the event] If a witness asserts a privilege against self-incrimination, testimony 275 and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of S.B. 296 03-04-15 9:09 AM - 10 - 276 Immunity. 277 Section 5. Section 34A-5-106 is amended to read: 278 34A-5-106. Discriminatory or prohibited employment practices -- Permitted 279 practices. 280 (1) It is a discriminatory or prohibited employment practice to take [any] an action 281 described in Subsections (1)(a) through (f). 282 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate 283 [any] a person, or to retaliate against, harass, or discriminate in matters of compensation or in 284 terms, privileges, and conditions of employment against [any] a person otherwise qualified, 285 because of: 286 (A) race; 287 (B) color; 288 (C) sex; 289 (D) pregnancy, childbirth, or pregnancy-related conditions; 290 (E) age, if the individual is 40 years of age or older; 291 (F) religion; 292 (G) national origin; [or] 293 (H) disability[.]; 294 (I) sexual orientation; or 295 (J) gender identity. 296 (ii) A person may not be considered "otherwise qualified," unless that person possesses 297 the following required by an employer for any particular job, job classification, or position: 298 (A) education; 299 (B) training; 300 (C) ability, with or without reasonable accommodation; 301 (D) moral character; 302 (E) integrity; 303 (F) disposition to work; 304 (G) adherence to reasonable rules and regulations; and 305 (H) other job related qualifications required by an employer. 306 (iii) (A) As used in this chapter, "to discriminate in matters of compensation" means 03-04-15 9:09 AM S.B. 296 - 11 - 307 the payment of differing wages or salaries to employees having substantially equal experience, 308 responsibilities, and skill for the particular job. 309 (B) Notwithstanding Subsection (1)(a)(iii)(A): 310 (I) nothing in this chapter prevents [increases] an increase in pay as a result of 311 longevity with the employer, if the salary [increases are] increase is uniformly applied and 312 available to all employees on a substantially proportional basis; and 313 (II) nothing in this section prohibits an employer and employee from agreeing to a rate 314 of pay or work schedule designed to protect the employee from loss of Social Security payment 315 or benefits if the employee is eligible for those payments. 316 (b) An employment agency may not: 317 (i) refuse to list and properly classify for employment, or refuse to refer an individual 318 for employment, in a known available job for which the individual is otherwise qualified, 319 because of: 320 (A) race; 321 (B) color; 322 (C) sex; 323 (D) pregnancy, childbirth, or pregnancy-related conditions; 324 (E) religion; 325 (F) national origin; 326 (G) age, if the individual is 40 years of age or older; [or] 327 (H) disability; [or] 328 (I) sexual orientation; or 329 (J) gender identity; or 330 (ii) comply with a request from an employer for referral of [applicants] an applicant for 331 employment if the request indicates either directly or indirectly that the employer discriminates 332 in employment on account of: 333 (A) race; 334 (B) color; 335 (C) sex; 336 (D) pregnancy, childbirth, or pregnancy-related conditions; 337 (E) religion; S.B. 296 03-04-15 9:09 AM - 12 - 338 (F) national origin; 339 (G) age, if the individual is 40 years of age or older; [or] 340 (H) disability[.]; 341 (I) sexual orientation; or 342 (J) gender identity. 343 (c) (i) A labor organization may not for a reason listed in Subsection (1)(c)(ii): 344 (A) exclude [any] an individual otherwise qualified from full membership rights in the 345 labor organization[,]; 346 (B) expel the individual from membership in the labor organization[,]; or 347 (C) otherwise discriminate against or harass [any of the labor organization's members] 348 a member of the labor organization in full employment of work opportunity, or representation[, 349 because of:]. 350 (ii) A labor organization may not take an action listed in this Subsection (1)(c) because 351 of: 352 [(i)] (A) race; 353 [(ii)] (B) sex; 354 [(iii)] (C) pregnancy, childbirth, or pregnancy-related conditions; 355 [(iv)] (D) religion; 356 [(v)] (E) national origin; 357 [(vi)] (F) age, if the individual is 40 years of age or older; [or] 358 [(vii)] (G) disability[.]; 359 (H) sexual orientation; or 360 (I) gender identity. 361 (d) (i) Unless based upon a bona fide occupational qualification, or required by and 362 given to an agency of government for a security [reasons] reason, an employer, employment 363 agency, or labor organization may not do the following if the statement, advertisement, 364 publication, form, or inquiry violates Subsection (1)(d)(ii): 365 (A) print, [or] circulate, or cause to be printed or circulated[, any] a statement, 366 advertisement, or publication[,]; 367 (B) use [any] a form of application for employment or membership[,]; or 368 (C) make any inquiry in connection with prospective employment or membership [that 03-04-15 9:09 AM S.B. 296 - 13 - 369 expresses, either directly or indirectly: (i) any]. 370 (ii) This Subsection (1)(d) applies to a statement, advertisement, publication, form, or 371 inquiry that directly expresses a limitation, specification, or discrimination as to: 372 (A) race; 373 (B) color; 374 (C) religion; 375 (D) sex; 376 (E) pregnancy, childbirth, or pregnancy-related conditions; 377 (F) national origin; 378 (G) age, if the individual is 40 years of age or older; [or] 379 (H) disability; [or] 380 [(ii) the intent to make any limitation, specification, or discrimination described in 381 Subsection (1)(d)(i).] 382 (I) sexual orientation; or 383 (J) gender identity. 384 (e) A person, whether or not an employer, an employment agency, a labor organization, 385 or [the employees or members] an employee or member of an employer, employment agency, 386 or labor organization, may not: 387 (i) aid, incite, compel, or coerce the doing of an act defined in this section to be a 388 discriminatory or prohibited employment practice; 389 (ii) obstruct or prevent [any] a person from complying with this chapter, or any order 390 issued under this chapter; or 391 (iii) attempt, either directly or indirectly, to commit [any] an act prohibited in this 392 section. 393 (f) (i) An employer, labor organization, joint apprenticeship committee, or vocational 394 school[,] providing, coordinating, or controlling an apprenticeship [programs,] program or 395 providing, coordinating, or controlling an on-the-job-training [programs] program, instruction, 396 training, or retraining [programs] program may not: 397 (A) deny to, or withhold from, any qualified person[,] the right to be admitted to[,] or 398 participate in [any] an apprenticeship training program, on-the-job-training program, or other 399 occupational instruction, training, or retraining program because of: S.B. 296 03-04-15 9:09 AM - 14 - 400 (I) race; 401 (II) color; 402 (III) sex; 403 (IV) pregnancy, childbirth, or pregnancy-related conditions; 404 (V) religion; 405 (VI) national origin; 406 (VII) age, if the individual is 40 years of age or older; [or] 407 (VIII) disability; 408 (IX) sexual orientation; or 409 (X) gender identity; 410 (B) discriminate against or harass [any] a qualified person in that person's pursuit of 411 [programs] a program described in Subsection (1)(f)(i)(A)[, or to] because of: 412 (I) race; 413 (II) color; 414 (III) sex; 415 (IV) pregnancy, childbirth, or pregnancy-related conditions; 416 (V) religion; 417 (VI) national origin; 418 (VII) age, if the individual is 40 years of age or older; 419 (VIII) disability; 420 (IX) sexual orientation; or 421 (X) gender identity; 422 (C) discriminate against [such] a qualified person in the terms, conditions, or privileges 423 of [programs] a program described in Subsection (1)(f)(i)(A), because of: 424 (I) race; 425 (II) color; 426 (III) sex; 427 (IV) pregnancy, childbirth, or pregnancy-related conditions; 428 (V) religion; 429 (VI) national origin; 430 (VII) age, if the individual is 40 years of age or older; [or] 03-04-15 9:09 AM S.B. 296 - 15 - 431 (VIII) disability; [or] 432 (IX) sexual orientation; or 433 (X) gender identity; or 434 [(C)] (D) except as provided in Subsection (1)(f)(ii), print, publish, or cause to be 435 printed or published, [any] a notice or advertisement relating to employment by the employer, 436 or membership in or [any] a classification or referral for employment by a labor organization, 437 or relating to [any] a classification or referral for employment by an employment agency, 438 indicating [any] a preference, limitation, specification, or discrimination based on: 439 (I) race; 440 (II) color; 441 (III) sex; 442 (IV) pregnancy, childbirth, or pregnancy-related conditions; 443 (V) religion; 444 (VI) national origin; 445 (VII) age, if the individual is 40 years of age or older; [or] 446 (VIII) disability[.]; 447 (IX) sexual orientation; or 448 (X) gender identity. 449 (ii) Notwithstanding Subsection (1)(f)(i)[(C)](D), if the following is a bona fide 450 occupational qualification for employment, a notice or advertisement described in Subsection 451 (1)(f)(i)[(C)](D) may indicate a preference, limitation, specification, or discrimination based 452 on: 453 (A) race; 454 (B) color; 455 (C) religion; 456 (D) sex; 457 (E) pregnancy, childbirth, or pregnancy-related conditions; 458 (F) age; 459 (G) national origin; [or] 460 (H) disability[.]; 461 (I) sexual orientation; or S.B. 296 03-04-15 9:09 AM - 16 - 462 (J) gender identity. 463 (2) [Nothing contained in] Subsections (1)(a) through (1)(f) [shall] may not be 464 construed to prevent: 465 (a) the termination of employment of an individual who, with or without reasonable 466 accommodation, is physically, mentally, or emotionally unable to perform the duties required 467 by that individual's employment; 468 (b) the variance of insurance premiums or coverage on account of age; or 469 (c) a restriction on the activities of [individuals licensed by the liquor authority with 470 respect to persons] a person licensed in accordance with Title 32B, Alcoholic Beverage Control 471 Act, with respect to an individual who is under 21 years of age. 472 (3) (a) It is not a discriminatory or prohibited employment practice: 473 (i) for an employer to hire and employ [employees] an employee, for an employment 474 agency to classify or refer for employment [any] an individual, for a labor organization to 475 classify its membership or to classify or refer for employment [any] an individual, or for an 476 employer, labor organization, or joint labor-management committee controlling an 477 apprenticeship or other training or retraining [programs] program to admit or employ [any] an 478 individual in [any such] the program[,] on the basis of religion, sex, pregnancy, childbirth, or 479 pregnancy-related conditions, age, national origin, [or] disability, sexual orientation, or gender 480 identity in those certain instances [where] when religion, sex, pregnancy, childbirth, or 481 pregnancy-related conditions, age, if the individual is 40 years of age or older, national origin, 482 [or] disability, sexual orientation, or gender identity is a bona fide occupational qualification 483 reasonably necessary to the normal operation of that particular business or enterprise; 484 (ii) for a school, college, university, or other educational institution to hire and employ 485 [employees] an employee of a particular religion if: 486 (A) the school, college, university, or other educational institution is, in whole or in 487 substantial part, owned, supported, controlled, or managed by a particular religious corporation, 488 association, or society; or 489 (B) the curriculum of the school, college, university, or other educational institution is 490 directed toward the propagation of a particular religion; 491 (iii) for an employer to give preference in employment to: 492 (A) the employer's: 03-04-15 9:09 AM S.B. 296 - 17 - 493 (I) spouse; 494 (II) child; or 495 (III) son-in-law or daughter-in-law; 496 (B) [any] a person for whom the employer is or would be liable to furnish financial 497 support if [those persons] the person were unemployed; 498 (C) [any] a person to whom the employer during the preceding six months [has 499 furnished] furnishes more than one-half of total financial support regardless of whether or not 500 the employer was or is legally obligated to furnish support; or 501 (D) [any] a person whose education or training [was] is substantially financed by the 502 employer for a period of two years or more. 503 (b) Nothing in this chapter applies to [any] a business or enterprise on or near an Indian 504 reservation with respect to [any] a publicly announced employment practice of the business or 505 enterprise under which preferential treatment is given to [any] an individual because that 506 individual is a native American Indian living on or near an Indian reservation. 507 (c) Nothing in this chapter [shall] may be interpreted to require [any] an employer, 508 employment agency, labor organization, vocational school, joint labor-management committee, 509 or apprenticeship program subject to this chapter to grant preferential treatment to [any] an 510 individual or to [any] a group because of the race, color, religion, sex, age, national origin, [or] 511 disability, sexual orientation, or gender identity of the individual or group on account of an 512 imbalance [which] that may exist with respect to the total number or percentage of persons of 513 [any] a race, color, religion, sex, age, national origin, [or] disability, sexual orientation, or 514 gender identity employed by [any] an employer, referred or classified for employment by an 515 employment agency or labor organization, admitted to membership or classified by [any] a 516 labor organization, or admitted to or employed in, any apprenticeship or other training 517 program, in comparison with the total number or percentage of persons of that race, color, 518 religion, sex, age, national origin, [or] disability, sexual orientation, or gender identity in any 519 community or county or in the available work force in any community or county. 520 (4) It is not a discriminatory or prohibited practice with respect to age to observe the 521 terms of a bona fide seniority system or any bona fide employment benefit plan such as a 522 retirement, pension, or insurance plan that is not a subterfuge to evade the purposes of this 523 chapter, except that [no such] an employee benefit plan [shall] may not excuse the failure to S.B. 296 03-04-15 9:09 AM - 18 - 524 hire an individual. 525 (5) Notwithstanding Subsection (4), or [any other statutory provision] another statute to 526 the contrary, a person may not be subject to involuntary termination or retirement from 527 employment on the basis of age alone, if the individual is 40 years of age or older, except: 528 (a) under Subsection (6); and 529 (b) when age is a bona fide occupational qualification. 530 (6) Nothing in this section prohibits compulsory retirement of an employee who has 531 attained at least 65 years of age, and who, for the two-year period immediately before 532 retirement, is employed in a bona fide executive or a high policymaking position, if: 533 (a) that employee is entitled to an immediate nonforfeitable annual retirement benefit 534 from the employee's employer's pension, profit-sharing, savings, or deferred compensation 535 plan, or any combination of those plans; and 536 (b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000. 537 Section 6. Section 34A-5-107 is amended to read: 538 34A-5-107. Procedure for aggrieved person to file claim -- Investigations -- 539 Adjudicative proceedings -- Settlement -- Reconsideration -- Determination. 540 (1) (a) [Any] A person claiming to be aggrieved by a discriminatory or prohibited 541 employment practice may, or that person's attorney or agent may, make, sign, and file with the 542 division a request for agency action. 543 (b) [Every] A request for agency action shall be verified under oath or affirmation. 544 (c) A request for agency action made under this section shall be filed within 180 days 545 after the alleged discriminatory or prohibited employment practice [occurred] occurs. 546 (d) The division may transfer a request for agency action filed with the division 547 pursuant to this section to the federal Equal Employment Opportunity Commission in 548 accordance with [the provisions of any] a work-share agreement that is: 549 (i) between the division and the Equal Employment Opportunity Commission; and 550 (ii) in effect on the day on which the request for agency action is transferred. 551 (2) [Any] An employer, labor organization, joint apprenticeship committee, or 552 vocational school who has an employee or member who refuses or threatens to refuse to 553 comply with this chapter may file with the division a request for agency action asking the 554 division for assistance to obtain the employee's or member's compliance by conciliation or 03-04-15 9:09 AM S.B. 296 - 19 - 555 other remedial action. 556 (3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the 557 division shall promptly assign an investigator to attempt a settlement between the parties by 558 conference, conciliation, or persuasion. 559 (b) If no settlement is reached, the investigator shall make a prompt impartial 560 investigation of all allegations made in the request for agency action. 561 (c) The division and its staff, agents, and employees: 562 (i) shall conduct every investigation in fairness to all parties and agencies involved; 563 and 564 (ii) may not attempt a settlement between the parties if it is clear that no discriminatory 565 or prohibited employment practice has occurred. 566 (d) An aggrieved party may withdraw the request for agency action prior to the 567 issuance of a final order. 568 (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator 569 uncovers insufficient evidence during the investigation to support the allegations of a 570 discriminatory or prohibited employment practice set out in the request for agency action, the 571 investigator shall formally report these findings to the director or the director's designee. 572 (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director 573 or the director's designee may issue a determination and order for dismissal of the adjudicative 574 proceeding. 575 (c) A party may make a written request to the Division of Adjudication for an 576 evidentiary hearing to review de novo the director's or the director's designee's determination 577 and order within 30 days of the date the determination and order for dismissal is issued. 578 (d) If the director or the director's designee receives no timely request for a hearing, the 579 determination and order issued by the director or the director's designee becomes the final order 580 of the commission. 581 (5) (a) If the initial attempts at settlement are unsuccessful and the investigator 582 uncovers sufficient evidence during the investigation to support the allegations of a 583 discriminatory or prohibited employment practice set out in the request for agency action, the 584 investigator shall formally report these findings to the director or the director's designee. 585 (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the S.B. 296 03-04-15 9:09 AM - 20 - 586 director or the director's designee may issue a determination and order based on the 587 investigator's report. 588 (ii) A determination and order issued under this Subsection (5)(b) shall: 589 (A) direct the respondent to cease any discriminatory or prohibited employment 590 practice; and 591 (B) provide relief to the aggrieved party as the director or the director's designee 592 determines is appropriate. 593 (c) A party may file a written request to the Division of Adjudication for an evidentiary 594 hearing to review de novo the director's or the director's designee's determination and order 595 within 30 days of the date the determination and order is issued. 596 (d) If the director or the director's designee receives no timely request for a hearing, the 597 determination and order issued by the director or the director's designee in accordance with 598 Subsection (5)(b) becomes the final order of the commission. 599 (6) In [any] an adjudicative proceeding to review the director's or the director's 600 designee's determination that a prohibited employment practice has occurred, the division shall 601 present the factual and legal basis of the determination or order issued under Subsection (5). 602 (7) (a) [Prior to] Before the commencement of an evidentiary hearing: 603 (i) the party filing the request for agency action may reasonably and fairly amend any 604 allegation; and 605 (ii) the respondent may amend its answer. 606 (b) An amendment permitted under this Subsection (7) may be made: 607 (i) during or after a hearing; and 608 (ii) only with permission of the presiding officer. 609 (8) (a) If, upon reviewing all the evidence at a hearing, the presiding officer finds that a 610 respondent has not engaged in a discriminatory or prohibited employment practice, the 611 presiding officer shall issue an order dismissing the request for agency action containing the 612 allegation of a discriminatory or prohibited employment practice. 613 (b) The presiding officer may order that the respondent be reimbursed by the 614 complaining party for the respondent's attorneys' fees and costs. 615 (9) If, upon reviewing all the evidence at the hearing, the presiding officer finds that a 616 respondent has engaged in a discriminatory or prohibited employment practice, the presiding 03-04-15 9:09 AM S.B. 296 - 21 - 617 officer shall issue an order requiring the respondent to: 618 (a) cease any discriminatory or prohibited employment practice; and 619 (b) provide relief to the complaining party, including: 620 (i) reinstatement; 621 (ii) back pay and benefits; 622 (iii) [attorneys'] attorney fees; and 623 (iv) costs. 624 (10) Conciliation between the parties is to be urged and facilitated at all stages of the 625 adjudicative process. 626 (11) (a) Either party may file with the Division of Adjudication a written request for 627 review before the commissioner or Appeals Board of the order issued by the presiding officer 628 in accordance with: 629 (i) Section 63G-4-301; and 630 (ii) Chapter 1, Part 3, Adjudicative Proceedings. 631 (b) If there is no timely request for review, the order issued by the presiding officer 632 becomes the final order of the commission. 633 (12) An order of the commission under Subsection (11)(a) is subject to judicial review 634 as provided in: 635 (a) Section 63G-4-403; and 636 (b) Chapter 1, Part 3, Adjudicative Proceedings. 637 (13) The commission [shall have authority to] may make rules concerning procedures 638 under this chapter in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking 639 Act. 640 (14) The commission and its staff may not divulge or make public [any] information 641 gained from [any] an investigation, settlement negotiation, or proceeding before the 642 commission except as provided in Subsections (14)(a) through (d). 643 (a) Information used by the director or the director's designee in making [any] a 644 determination may be provided to all interested parties for the purpose of preparation for and 645 participation in proceedings before the commission. 646 (b) General statistical information may be disclosed provided the identities of the 647 individuals or parties are not disclosed. S.B. 296 03-04-15 9:09 AM - 22 - 648 (c) Information may be disclosed for inspection by the attorney general or other legal 649 representatives of the state or the commission. 650 (d) Information may be disclosed for information and reporting requirements of the 651 federal government. 652 (15) The procedures contained in this section are the exclusive remedy under state law 653 for employment discrimination based upon: 654 (a) race; 655 (b) color; 656 (c) sex; 657 (d) retaliation; 658 (e) pregnancy, childbirth, or pregnancy-related conditions; 659 (f) age; 660 (g) religion; 661 (h) national origin; [or] 662 (i) disability[.]; 663 (j) sexual orientation; or 664 (k) gender identity. 665 (16) (a) The commencement of an action under federal law for relief based upon [any] 666 an act prohibited by this chapter bars the commencement or continuation of [any] an 667 adjudicative proceeding before the commission in connection with the same [claims] claim 668 under this chapter. 669 (b) The transfer of a request for agency action to the Equal Employment Opportunity 670 Commission in accordance with Subsection (1)(d) is considered the commencement of an 671 action under federal law for purposes of Subsection (16)(a). 672 (c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair the 673 exclusive remedy provision set forth in Subsection (15). 674 Section 7. Section 34A-5-109 is enacted to read: 675 34A-5-109. Application to employee dress and grooming standards. 676 This chapter may not be interpreted to prohibit an employer from adopting reasonable 677 dress and grooming standards not prohibited by other provisions of federal or state law, 678 provided that the employer's dress and grooming standards afford reasonable accommodations 03-04-15 9:09 AM S.B. 296 - 23 - 679 based on gender identity to all employees. 680 Section 8. Section 34A-5-110 is enacted to read: 681 34A-5-110. Application to sex-specific facilities. 682 This chapter may not be interpreted to prohibit an employer from adopting reasonable 683 rules and policies that designate sex-specific facilities, including restrooms, shower facilities, 684 and dressing facilities, provided that the employer's rules and policies adopted under this 685 section afford reasonable accommodations based on gender identity to all employees. 686 Section 9. Section 34A-5-111 is enacted to read: 687 34A-5-111. Application to the freedom of expressive association and the free 688 exercise of religion. 689 This chapter may not be interpreted to infringe upon the freedom of expressive 690 association or the free exercise of religion protected by the First Amendment of the United 691 States Constitution and Article I, Sections 1, 4, and 15 of the Utah Constitution. 692 Section 10. Section 34A-5-112 is enacted to read: 693 34A-5-112. Religious liberty protections -- Expressing beliefs and commitments in 694 workplace -- Prohibition on employment actions against certain employee speech. 695 (1) An employee may express the employee's religious or moral beliefs and 696 commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on 697 equal terms with similar types of expression of beliefs or commitments allowed by the 698 employer in the workplace, unless the expression is in direct conflict with the essential 699 business-related interests of the employer. 700 (2) An employer may not discharge, demote, terminate, or refuse to hire any person, or 701 retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and 702 conditions of employment against any person otherwise qualified, for lawful expression or 703 expressive activity outside of the workplace regarding the person's religious, political, or 704 personal convictions, including convictions about marriage, family, or sexuality, unless the 705 expression or expressive activity is in direct conflict with the essential business-related 706 interests of the employer. 707 Section 11. Section 57-21-2 is amended to read: 708 57-21-2. Definitions. 709 As used in this chapter: S.B. 296 03-04-15 9:09 AM - 24 - 710 (1) "Affiliate" means the same as that term is defined in Section 16-6a-102. 711 [(1)] (2) "Aggrieved person" includes [any] a person who: 712 (a) claims to have been injured by a discriminatory housing practice; or 713 (b) believes that the person will be injured by a discriminatory housing practice that is 714 about to occur. 715 [(2)] (3) "Commission" means the Labor Commission. 716 [(3)] (4) "Complainant" means an aggrieved person, including the director, who has 717 commenced a complaint with the division. 718 [(4)] (5) "Conciliation" means the attempted resolution of [issues] an issue raised [by] 719 in a complaint of discriminatory housing practices by the investigation of the complaint 720 through informal negotiations involving the complainant, the respondent, and the division. 721 [(5)] (6) "Conciliation agreement" means a written agreement setting forth the 722 resolution of the issues in conciliation. 723 [(6)] (7) "Conciliation conference" means the attempted resolution of [issues] an issue 724 raised [by] in a complaint or by the investigation of a complaint through informal negotiations 725 involving the complainant, the respondent, and the division. The conciliation conference is not 726 subject to Title 63G, Chapter 4, Administrative Procedures Act. 727 [(7)] (8) "Covered multifamily [dwellings"] dwelling" means: 728 (a) [buildings] a building consisting of four or more dwelling units if the [buildings 729 have] building has one or more elevators; and 730 (b) the ground floor units in other buildings consisting of four or more dwelling units. 731 [(8)] (9) "Director" means the director of the division or a designee. 732 [(9)] (10) (a) "Disability" means a physical or mental impairment that substantially 733 limits one or more of a person's major life activities, including a person having a record of such 734 an impairment or being regarded as having such an impairment. 735 (b) "Disability" does not include current illegal use of, or addiction to, any federally 736 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 737 Sec. 802. 738 [(10)] (11) "Discriminate" includes segregate or separate. 739 [(11)] (12) "Discriminatory housing practice" means an act that is unlawful under this 740 chapter. 03-04-15 9:09 AM S.B. 296 - 25 - 741 [(12)] (13) "Division" means the Division of Antidiscrimination and Labor established 742 under the commission. 743 [(13) (a)] (14) "Dwelling" means [any]: 744 (a) a building or structure, or a portion of a building or structure, occupied as, [or] 745 designed as, or intended for occupancy as[,] a residence of one or more families[.]; or 746 (b) ["Dwelling" also includes] vacant land that is offered for sale or lease for the 747 construction or location of a dwelling as described in Subsection [(13)] (14)(a). 748 [(14)] (15) (a) "Familial status" means one or more individuals who have not attained 749 the age of 18 years being domiciled with: 750 (i) a parent or another person having legal custody of the [individual] one or more 751 individuals; or 752 (ii) the designee of the parent or other person having custody, with the written 753 permission of the parent or other person. 754 (b) The protections afforded against discrimination on the basis of familial status 755 [shall] apply to [any] a person who: 756 (i) is pregnant; 757 (ii) is in the process of securing legal custody of any individual who has not attained 758 the age of 18 years; or 759 (iii) is a single individual. 760 (16) "Gender identity" has the meaning provided in the Diagnostic and Statistical 761 Manual (DSM-5). A person's gender identity can be shown by providing evidence, including, 762 but not limited to, medical history, care or treatment of the gender identity, consistent and 763 uniform assertion of the gender identity, or other evidence that the gender identity is sincerely 764 held, part of a person's core identity, and not being asserted for an improper purpose. 765 [(15)] (17) "National origin" means the place of birth of an individual or of any lineal 766 ancestors. 767 [(16)] (18) "Person" includes one or more individuals, corporations, limited liability 768 companies, partnerships, associations, labor organizations, legal representatives, mutual 769 companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in 770 cases under the United States Bankruptcy Code, receivers, and fiduciaries. 771 [(17)] (19) "Presiding officer" has the same meaning as provided in Section S.B. 296 03-04-15 9:09 AM - 26 - 772 63G-4-103. 773 [(18)] (20) "Real estate broker" or "salesperson" means a principal broker, an associate 774 broker, or a sales agent as those terms are defined in Section 61-2f-102. 775 [(19)] (21) "Respondent" means a person against whom a complaint of housing 776 discrimination has been initiated. 777 [(20)] (22) "Sex" means gender and includes pregnancy, childbirth, and disabilities 778 related to pregnancy or childbirth. 779 (23) "Sexual orientation" means an individual's actual or perceived orientation as 780 heterosexual, homosexual, or bisexual. 781 [(21)] (24) "Source of income" means the verifiable condition of being a recipient of 782 federal, state, or local assistance, including medical assistance, or of being a tenant receiving 783 federal, state, or local subsidies, including rental assistance or rent supplements. 784 Section 12. Section 57-21-2.5 is enacted to read: 785 57-21-2.5. Supremacy over local regulations -- No special class created for other 786 purposes. 787 (1) This chapter supersedes and preempts any ordinance, regulation, standard, or other 788 legal action by a local government entity, a state entity, or the governing body of a political 789 subdivision that relates to the prohibition of discrimination in housing. 790 (2) This chapter shall not be construed to create a special or protected class for any 791 purpose other than housing. 792 Section 13. Section 57-21-2.7 is enacted to read: 793 57-21-2.7. Nonseverability. 794 This bill is the result of the Legislature's balancing of competing interests. 795 Accordingly, if any phrase, clause, sentence, provision, or subsection enacted or amended in 796 this chapter by this bill is held invalid in a final judgment by a court of last resort, the 797 remainder of the enactments and amendments of this bill affecting this chapter shall be thereby 798 rendered without effect and void. 799 Section 14. Section 57-21-3 is amended to read: 800 57-21-3. Exemptions -- Sale by private individuals -- Nonprofit organizations -- 801 Noncommercial transactions. 802 (1) This chapter does not apply to [any] a single-family dwelling unit sold or rented by 03-04-15 9:09 AM S.B. 296 - 27 - 803 its owner if: 804 (a) the owner is not a partnership, association, corporation, or other business entity; 805 (b) the owner does not own [any] an interest in four or more single-family dwelling 806 units held for sale or lease at the same time; 807 (c) during a 24-month period, the owner does not sell two or more single-family 808 dwelling units in which the owner was not residing or was not the most recent resident at the 809 time of sale; 810 (d) the owner does not retain or use the facilities or services of [any] a real estate 811 broker or salesperson; and 812 (e) the owner does not use [any] a discriminatory housing practice under Subsection 813 57-21-5(2) in the sale or rental of the dwelling. 814 (2) This chapter does not apply to a dwelling or a temporary or permanent residence 815 facility [operated by a nonprofit or charitable organization, including any dormitory operated 816 by a public or private educational institution,] if: 817 (a) the discrimination is by sex, sexual orientation, gender identity, or familial status 818 for reasons of personal modesty or privacy, or in the furtherance of a religious institution's free 819 exercise of religious rights under the First Amendment of the United States Constitution[.] or 820 the Utah Constitution; and 821 (b) the dwelling or the temporary or permanent residence facility is: 822 (i) operated by a nonprofit or charitable organization; 823 (ii) owned by, operated by, or under contract with a religious organization, a religious 824 association, a religious educational institution, or a religious society; 825 (iii) owned by, operated by, or under contract with an affiliate of an entity described in 826 Subsection (2)(b)(ii); or 827 (iv) owned by or operated by a person under contract with an entity described in 828 Subsection (2)(b)(ii). 829 (3) This chapter, except for Subsection 57-21-5(2), does not apply to the rental of a 830 room in [the] a single-family dwelling by an owner-occupant of [a] the single-family dwelling 831 to another person if: 832 (a) the dwelling is designed for occupancy by four or fewer families[,]; and 833 (b) the owner-occupant resides in one of the units. S.B. 296 03-04-15 9:09 AM - 28 - 834 [(4) This chapter does not prohibit a religious organization, association, or society, or 835 any nonprofit institution or organization operated, supervised, or controlled by or in 836 conjunction with a religious organization, association, or society, from] 837 (4) (a) (i) Unless membership in a religion is restricted by race, color, sex, or national 838 origin, this chapter does not prohibit an entity described in Subsection (4)(a)(ii) from: 839 (A) limiting the sale, rental, or occupancy of [dwellings it] a dwelling or temporary or 840 permanent residence facility the entity owns or operates for primarily noncommercial purposes 841 to persons of the same religion[,]; or [from giving preference to such persons, unless 842 membership in the religion is restricted by race, color, sex, or national origin.] 843 (B) giving preference to persons of the same religion when selling, renting, or selecting 844 occupants for a dwelling, or a temporary or permanent residence facility, the entity owns or 845 operates for primarily noncommercial purposes. 846 (ii) The following entities are entitled to the exemptions described in Subsection 847 (4)(a)(i): 848 (A) a religious organization, association, or society; or 849 (B) a nonprofit institution or organization operated, supervised, or controlled by or in 850 conjunction with a religious organization, association, or society. 851 (b) (i) This chapter does not prohibit an entity described in Subsection (4)(b)(ii) from: 852 (A) limiting the sale, rental, or occupancy of a dwelling, or a temporary or permanent 853 residence facility, the entity owns or operates to persons of a particular religion, sex, sexual 854 orientation, or gender identity; or 855 (B) giving preference to persons of a particular religion, sex, sexual orientation, or 856 gender identity when selling, renting, or selecting occupants for a dwelling, or a temporary or 857 permanent residence facility, the entity owns or operates. 858 (ii) The following entities are entitled to the exemptions described in Subsection 859 (4)(b)(i): 860 (A) an entity described in Subsection (4)(a)(ii); and 861 (B) a person who owns a dwelling, or a temporary or permanent residence facility, that 862 is under contract with an entity described in Subsection (4)(a)(ii). 863 (5) [This] (a) If the conditions of Subsection (5)(b) are met, this chapter does not 864 prohibit a private club not open to the public, including [fraternities and sororities] a fraternity 03-04-15 9:09 AM S.B. 296 - 29 - 865 or sorority associated with [institutions] an institution of higher education, from: 866 (i) limiting the rental or occupancy of lodgings to members; or [from] 867 (ii) giving preference to its members[, but only if it]. 868 (b) This Subsection (5) applies only if the private club owns or operates the lodgings as 869 an incident to its primary purpose and not for a commercial purpose. 870 (6) This chapter does not prohibit distinctions based on inability to fulfill the terms and 871 conditions, including financial obligations, of a lease, rental agreement, contract of purchase or 872 sale, mortgage, trust deed, or other financing agreement. 873 (7) This chapter does not prohibit [any] a nonprofit educational institution from: 874 (a) requiring its single students to live in [housing approved, operated, or owned by the 875 institution] a dwelling, or a temporary or permanent residence facility, that is owned by, 876 operated by, or under contract with the nonprofit educational institution; 877 (b) segregating [housing that the institution approves, operates, or owns] a dwelling, or 878 a temporary or permanent residence facility, that is owned by, operated by, or under contract 879 with the nonprofit educational institution on the basis of sex or familial status or both: 880 (i) for reasons of personal modesty or privacy[,]; or 881 (ii) in the furtherance of a religious institution's free exercise of religious rights under 882 the First Amendment of the United States Constitution or the Utah Constitution; or 883 (c) otherwise assisting [others] another person in making [sex-segregated housing] a 884 dwelling, or a temporary or permanent residence facility, available to students on a 885 sex-segregated basis as may be permitted by: 886 (i) regulations implementing the federal Fair Housing Amendments Act of 1988 [and]; 887 (ii) Title IX of the Education Amendments of 1972[.]; or 888 (iii) other applicable law. 889 (8) This chapter does not prohibit any reasonable local, state, or federal [restrictions] 890 restriction regarding the maximum number of occupants permitted to occupy a 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 895 1968, as amended. S.B. 296 03-04-15 9:09 AM - 30 - 896 Section 15. Section 57-21-5 is amended to read: 897 57-21-5. Discriminatory practices enumerated -- Protected persons, classes 898 enumerated. 899 (1) It is a discriminatory housing practice to do any of the following because of a 900 person's race, color, religion, sex, national origin, familial status, source of income, [or] 901 disability, sexual orientation, or gender identity: 902 (a) (i) refuse to sell or rent after the making of a bona fide offer[,]; 903 (ii) refuse to negotiate for the sale or rental[,]; or 904 (iii) otherwise deny or make unavailable [any] a dwelling from any person; 905 (b) discriminate against [any] a person in the terms, conditions, or privileges: 906 (i) of the sale or rental of [any] a dwelling; or 907 (ii) in providing facilities or services in connection with the dwelling; or 908 (c) represent to [any] a person that [any] a dwelling is not available for inspection, sale, 909 or rental when [in fact] the dwelling is available. 910 (2) It is a discriminatory housing practice to make a representation orally or in writing 911 or make, print, circulate, publish, post, or cause to be made, printed, circulated, published, or 912 posted any notice, statement, or advertisement, or to use any application form for the sale or 913 rental of a dwelling, that directly or indirectly expresses any preference, limitation, or 914 discrimination based on race, color, religion, sex, national origin, familial status, source of 915 income, [or] disability, sexual orientation, or gender identity, or expresses any intent to make 916 any such preference, limitation, or discrimination. 917 (3) It is a discriminatory housing practice to induce or attempt to induce, for profit, 918 [any] a person to buy, sell, or rent [any ] a dwelling by making [representations] a 919 representation about the entry or prospective entry into the neighborhood of persons of a 920 particular race, color, religion, sex, national origin, familial status, source of income, [or] 921 disability, sexual orientation, or gender identity. 922 (4) A discriminatory housing practice includes: 923 (a) a refusal to permit, at the expense of the person with a disability, reasonable 924 modifications of existing premises occupied or to be occupied by the person if the 925 modifications are necessary to afford that person full enjoyment of the premises, except that in 926 the case of a rental, the landlord, where it is reasonable to do so, may condition permission for 03-04-15 9:09 AM S.B. 296 - 31 - 927 a modification on the renter agreeing to restore the interior of the premises, when reasonable, to 928 the condition that existed before the modification, reasonable wear and tear excepted; 929 (b) a refusal to make a reasonable [accommodations in rules, policies, practices, or 930 services when the accommodations] accommodation in a rule, policy, practice, or service when 931 the accommodation may be necessary to afford the person equal opportunity to use and enjoy a 932 dwelling; and 933 (c) in connection with the design and construction of covered multifamily dwellings for 934 first occupancy after March 13, 1991, a failure to design and construct [those] the covered 935 multifamily dwellings in a manner that: 936 (i) the covered multifamily dwellings have at least one building entrance on an 937 accessible route, unless it is impracticable to have one because of the terrain or unusual 938 characteristics of the site; and 939 (ii) with respect to covered multifamily dwellings with a building entrance on an 940 accessible route: 941 (A) the public use and common use portions of the covered multifamily dwelling are 942 readily accessible to and usable by a person with a disability; 943 (B) all the doors designed to allow passage into and within the covered multifamily 944 dwellings are sufficiently wide to allow passage by a person with a disability who is in a 945 wheelchair; and 946 (C) all premises within [these] the covered multifamily dwellings contain the following 947 features of adaptive design: 948 (I) an accessible route into and through the covered multifamily dwelling; 949 (II) light switches, electrical outlets, thermostats, and other environmental controls in 950 accessible locations; 951 (III) reinforcements in the bathroom walls to allow later installation of grab bars; and 952 (IV) kitchens and bathrooms such that an individual in a wheelchair can maneuver 953 about and use the space. 954 (5) This section also applies to discriminatory housing practices because of race, color, 955 religion, sex, national origin, familial status, source of income, [or] disability, sexual 956 orientation, or gender identity based upon a person's association with another person. 957 Section 16. Section 57-21-6 is amended to read: S.B. 296 03-04-15 9:09 AM - 32 - 958 57-21-6. Discriminatory housing practices regarding residential real 959 estate-related transactions -- Discriminatory housing practices regarding the provisions 960 of brokerage services. 961 (1) (a) It is a discriminatory housing practice for [any] a person whose business 962 includes engaging in residential real estate-related transactions to discriminate against [any] a 963 person in making available [such] a residential real estate-related transaction, or in the terms or 964 conditions of the residential real estate-related transaction, because of race, color, religion, sex, 965 disability, familial status, source of income, [or] national origin, sexual orientation, or gender 966 identity. 967 (b) Residential real estate-related transactions include: 968 [(a)] (i) making or purchasing loans or providing other financial assistance: 969 [(i)] (A) for purchasing, constructing, improving, repairing, or maintaining a dwelling; 970 or 971 [(ii)] (B) secured by residential real estate; or 972 [(b)] (ii) selling, brokering, or appraising residential real property. 973 (2) It is a discriminatory housing practice to, because of race, color, religion, sex, 974 disability, familial status, source of income, national origin, sexual orientation, or gender 975 identity: 976 (a) deny [any] a person access to, or membership or participation in, [any] a 977 multiple-listing service, real estate brokers' organization, or other service, organization, or 978 facility relating to the business of selling or renting dwellings; or [to] 979 (b) discriminate against [any] a person in the terms or conditions of access, 980 membership, or participation in the organization, service, or facility [because of race, color, 981 religion, sex, disability, familial status, source of income, or national origin]. 982 (3) This section also applies to a discriminatory housing [practices] practice because of 983 race, color, religion, sex, national origin, familial status, source of income, [or] disability, 984 sexual orientation, or gender identity based upon a person's association with another person. 985 Section 17. Section 57-21-7 is amended to read: 986 57-21-7. Prohibited conduct -- Aiding or abetting in discriminatory actions -- 987 Obstruction of division investigation -- Reprisals. 988 (1) It is a discriminatory housing practice to do any of the following: 03-04-15 9:09 AM S.B. 296 - 33 - 989 (a) coerce, intimidate, threaten, or interfere with [any] a person: 990 (i) in the exercise or enjoyment of [any] a right granted or protected under this chapter; 991 (ii) because that person exercised [any] a right granted or protected under this chapter; 992 or 993 (iii) because that person aided or encouraged any other person in the exercise or 994 enjoyment of [any] a right granted or protected under this chapter; 995 (b) aid, abet, incite, compel, or coerce a person to engage in [any of the practices] a 996 practice prohibited by this chapter; 997 (c) attempt to aid, abet, incite, compel, or coerce a person to engage in [any of the 998 practices] a practice prohibited by this chapter; 999 (d) obstruct or prevent [any] a person from complying with this chapter, or any order 1000 issued under this chapter; 1001 (e) resist, prevent, impede, or interfere with the director or [any division employees or 1002 representatives] a division employee or representative in the performance of duty under this 1003 chapter; or 1004 (f) engage in [any] a reprisal against [any] a person because that person: 1005 (i) opposed a practice prohibited under this chapter; or 1006 (ii) filed a complaint, testified, assisted, or participated in any manner in [any] an 1007 investigation, proceeding, or hearing under this chapter. 1008 (2) This section also applies to discriminatory housing practices because of race, color, 1009 religion, sex, national origin, familial status, source of income, [or] disability, sexual 1010 orientation, or gender identity based upon a person's association with another person. 1011 Section 18. Section 57-21-12 is amended to read: 1012 57-21-12. Other rights of action. 1013 (1) In addition to the procedure outlined in Subsection 57-21-9(1), a person aggrieved 1014 by a discriminatory housing practice may commence a private civil action in a court of 1015 competent jurisdiction within two years after an alleged discriminatory housing practice 1016 occurred, within two years after the termination of an alleged discriminatory housing practice, 1017 or within two years after a breach of a conciliation agreement. The division shall inform the 1018 aggrieved person in writing about this option within 30 days after the aggrieved person files a 1019 complaint under Section 57-21-9. S.B. 296 03-04-15 9:09 AM - 34 - 1020 (2) (a) Except as provided in Subsection (2)(b), the computation of this two-year time 1021 period does not include any time during which an administrative proceeding under this chapter 1022 was pending with respect to a complaint filed under this chapter. 1023 (b) The tolling of the two-year time period does not apply to actions arising from a 1024 breach of a conciliation agreement. 1025 (3) An aggrieved person may commence a private civil action even though a complaint 1026 has been filed with the division, in which case the division is barred from continuing or 1027 commencing any adjudicative proceeding in connection with the same claims under this 1028 chapter after: 1029 (a) the beginning of a civil action brought by a complainant or aggrieved person; or 1030 (b) the parties have reached an agreement in settlement of claims arising from the 1031 complaint. 1032 (4) An aggrieved person may not file a private civil action under this section if: 1033 (a) the division has obtained a conciliation agreement, except for the purpose of 1034 enforcing the terms of the conciliation agreement; or 1035 (b) a formal adjudicative hearing has been commenced under Section 57-21-10 1036 regarding the same complaint. 1037 (5) Upon written application by a person alleging a discriminatory housing practice 1038 prohibited under this chapter in a private civil action, or by a person against whom the 1039 violations are alleged, the court may: 1040 (a) appoint an attorney for the applicant; and 1041 (b) authorize the commencement or continuation of a private civil action without the 1042 payment of fees, costs, or security if, in the opinion of the court, the applicant is financially 1043 unable to bear the costs of the civil action. 1044 (6) Upon timely application, the division may intervene in a private civil action 1045 brought under this subsection if the division certifies that the case is of general importance. 1046 (7) In a private civil action, if the court finds that a discriminatory housing practice has 1047 occurred or is about to occur, the court may: 1048 (a) order the respondent to cease any discriminatory housing practice; 1049 (b) award to the plaintiff actual damages, punitive damages, and reasonable [attorneys'] 1050 attorney fees and costs; and 03-04-15 9:09 AM S.B. 296 - 35 - 1051 (c) grant, as the court considers appropriate, any permanent or temporary injunction, 1052 temporary restraining order, or other order as may be appropriate, including civil penalties 1053 under Section 57-21-11. 1054 (8) This chapter does not preclude any private right of action by an aggrieved person 1055 based on otherwise applicable law not included in this chapter. 1056 Section 19. Revisor instructions. 1057 The Legislature intends that the Office of Legislative Research and General Counsel, in 1058 preparing the Utah Code database for publication, modify the language in Sections 1059 34A-5-102.7 and 57-21-2.7 from "this bill" to the bill's designated chapter number in the Laws 1060 of Utah. Legislative Review Note as of 3-3-15 2:07 PM Office of Legislative Research and General Counsel

Enrolled Copy S.B. 296 1 ANTIDISCRIMINATION AND RELIGIOUS FREEDOM 2 AMENDMENTS 3 2015 GENERAL SESSION 4 STATE OF UTAH 5 Chief Sponsors: Stephen H. Urquhart and J. Stuart Adams 6 House Sponsor: Brad L. Dee 7 8 LONG TITLE 9 General Description: 10 This bill modifies the Utah Antidiscrimination Act and the Utah Fair Housing Act to 11 address discrimination and religious freedoms. 12 Highlighted Provisions: 13 This bill: 14 < modifies definition provisions related to employment and housing discrimination, 15 including defining "employer," "gender identity," and "sexual orientation"; 16 < includes sexual orientation and gender identity as prohibited bases for 17 discrimination in employment; 18 < provides that the remedies in the Utah Antidiscrimination Act and the Utah Fair 19 Housing Act preempt local government remedies; 20 < provides that protections for employment and housing do not create a special or 21 protected class for other purposes; 22 < modifies powers of the Division of Antidiscrimination and Labor; 23 < addresses the Utah Antidiscrimination Act's application to: 24 C employee dress and grooming standards; 25 C sex-specific facilities; and 26 C freedom of expressive association and the free exercise of religion; 27 < addresses employee free speech in the workplace; 28 < prohibits an employer from taking certain actions in response to certain employee 29 speech outside the workplace; S.B. 296 Enrolled Copy - 2 - 30 < modifies exemptions to the Utah Fair Housing Act; 31 < includes sexual orientation and gender identity as prohibited bases for 32 discrimination in housing; 33 < includes nonseverability clauses; and 34 < makes technical and conforming amendments. 35 Money Appropriated in this Bill: 36 None 37 Other Special Clauses: 38 This bill provides revisor instructions. 39 Utah Code Sections Affected: 40 AMENDS: 41 34A-5-102, as last amended by Laws of Utah 2011, Chapter 413 42 34A-5-104, as last amended by Laws of Utah 2012, Chapter 369 43 34A-5-106, as last amended by Laws of Utah 2013, Chapter 278 44 34A-5-107, as last amended by Laws of Utah 2008, Chapter 382 45 57-21-2, as last amended by Laws of Utah 2010, Chapter 379 46 57-21-3, as last amended by Laws of Utah 1993, Chapter 114 47 57-21-5, as last amended by Laws of Utah 2011, Chapter 366 48 57-21-6, as last amended by Laws of Utah 1993, Chapter 114 49 57-21-7, as last amended by Laws of Utah 1993, Chapter 114 50 57-21-12, as last amended by Laws of Utah 1999, Chapter 160 51 ENACTS: 52 34A-5-102.5, Utah Code Annotated 1953 53 34A-5-102.7, Utah Code Annotated 1953 54 34A-5-109, Utah Code Annotated 1953 55 34A-5-110, Utah Code Annotated 1953 56 34A-5-111, Utah Code Annotated 1953 57 34A-5-112, Utah Code Annotated 1953 Enrolled Copy S.B. 296 - 3 - 58 57-21-2.5, Utah Code Annotated 1953 59 57-21-2.7, Utah Code Annotated 1953 60 Utah Code Sections Affected by Revisor Instructions: 61 34A-5-102.7, Utah Code Annotated 1953 62 57-21-2.7, Utah Code Annotated 1953 63 64 Be it enacted by the Legislature of the state of Utah: 65 Section 1. Section 34A-5-102 is amended to read: 66 34A-5-102. Definitions -- Unincorporated entities. 67 (1) As used in this chapter: 68 (a) "Affiliate" means the same as that term is defined in Section 16-6a-102. 69 [(a)] (b) "Apprenticeship" means a program for the training of apprentices including a 70 program providing the training of those persons defined as apprentices by Section 35A-6-102. 71 [(b)] (c) "Bona fide occupational qualification" means a characteristic applying to an 72 employee that: 73 (i) is necessary to the operation; or 74 (ii) is the essence of the employee's employer's business. 75 [(c)] (d) "Court" means: 76 (i) the district court in the judicial district of the state in which the asserted unfair 77 employment practice [occurred] occurs; or 78 (ii) if [this] the district court is not in session at that time, a judge of the court described 79 in Subsection (1)[(c)](d)(i). 80 [(d)] (e) "Director" means the director of the division. 81 [(e)] (f) "Disability" means a physical or mental disability as defined and covered by 82 the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102. 83 [(f)] (g) "Division" means the Division of Antidiscrimination and Labor. 84 [(g)] (h) "Employee" means [any] a person applying with or employed by an employer. 85 [(h)] (i) (i) "Employer" means: S.B. 296 Enrolled Copy - 4 - 86 (A) the state; 87 (B) [any] a political subdivision; 88 (C) a board, commission, department, institution, school district, trust, or agent of the 89 state or [its] a political [subdivisions] subdivision of the state; or 90 (D) a person employing 15 or more employees within the state for each working day in 91 each of 20 calendar weeks or more in the current or preceding calendar year. 92 (ii) "Employer" does not include: 93 (A) a religious organization [or association], a religious corporation sole, a religious 94 association, a religious society, a religious educational institution, or a religious leader, when 95 that individual is acting in the capacity of a religious leader; 96 [(B) a religious corporation sole; or] 97 [(C)] (B) any corporation or association constituting an affiliate, a wholly owned 98 subsidiary, or an agency of any religious organization [or association or religious corporation 99 sole.], religious corporation sole, religious association, or religious society; or 100 (C) the Boy Scouts of America or its councils, chapters, or subsidiaries. 101 [(i)] (j) "Employment agency" means [any] a person: 102 (i) undertaking to procure employees or opportunities to work for any other person; or 103 (ii) holding the person out to be equipped to take an action described in Subsection 104 (1)[(i)](j)(i). 105 (k) "Gender identity" has the meaning provided in the Diagnostic and Statistical 106 Manual (DSM-5). A person's gender identity can be shown by providing evidence, including, 107 but not limited to, medical history, care or treatment of the gender identity, consistent and 108 uniform assertion of the gender identity, or other evidence that the gender identity is sincerely 109 held, part of a person's core identity, and not being asserted for an improper purpose. 110 [(j)] (l) "Joint apprenticeship committee" means [any] an association of representatives 111 of a labor organization and an employer providing, coordinating, or controlling an apprentice 112 training program. 113 [(k)] (m) "Labor organization" means [any] an organization that exists for the purpose Enrolled Copy S.B. 296 - 5 - 114 in whole or in part of: 115 (i) collective bargaining; 116 (ii) dealing with employers concerning grievances, terms or conditions of employment; 117 or 118 (iii) other mutual aid or protection in connection with employment. 119 [(l)] (n) "National origin" means the place of birth, domicile, or residence of an 120 individual or of an individual's ancestors. 121 [(m)] (o) "On-the-job-training" means [any] a program designed to instruct a person 122 who, while learning the particular job for which the person is receiving instruction: 123 (i) is also employed at that job; or 124 (ii) may be employed by the employer conducting the program during the course of the 125 program, or when the program is completed. 126 [(n)] (p) "Person" means: 127 (i) one or more individuals, partnerships, associations, corporations, legal 128 representatives, trusts or trustees, or receivers[,]; 129 (ii) the state; and [all political subdivisions and agencies of the state.] 130 (iii) a political subdivision of the state. 131 [(o)] (q) "Presiding officer" means the same as that term is defined in Section 132 63G-4-103. 133 [(p)] (r) "Prohibited employment practice" means a practice specified as 134 discriminatory, and therefore unlawful, in Section 34A-5-106. 135 (s) "Religious leader" means an individual who is associated with, and is an authorized 136 representative of, a religious organization or association or a religious corporation sole, 137 including a member of clergy, a minister, a pastor, a priest, a rabbi, an imam, or a spiritual 138 advisor. 139 [(q)] (t) "Retaliate" means the taking of adverse action by an employer, employment 140 agency, labor organization, apprenticeship program, on-the-job training program, or vocational 141 school against one of its employees, applicants, or members because the employee, applicant, S.B. 296 Enrolled Copy - 6 - 142 or member [has]: 143 (i) [opposed any] opposes an employment practice prohibited under this chapter; or 144 (ii) [filed charges, testified, assisted, or participated] files charges, testifies, assists, or 145 participates in any way in [any] a proceeding, investigation, or hearing under this chapter. 146 (u) "Sexual orientation" means an individual's actual or perceived orientation as 147 heterosexual, homosexual, or bisexual. 148 [(r)] (v) "Unincorporated entity" means an entity organized or doing business in the 149 state that is not: 150 (i) an individual; 151 (ii) a corporation; or 152 (iii) publicly traded. 153 [(s)] (w) "Vocational school" means [any] a school or institution conducting a course 154 of instruction, training, or retraining to prepare individuals to follow an occupation or trade, or 155 to pursue a manual, technical, industrial, business, commercial, office, personal services, or 156 other nonprofessional occupations. 157 (2) (a) For purposes of this chapter, an unincorporated entity that is required to be 158 licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to 159 be the employer of each individual who, directly or indirectly, holds an ownership interest in 160 the unincorporated entity. 161 (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3, 162 Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption 163 under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that 164 the individual: 165 (i) is an active manager of the unincorporated entity; 166 (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated 167 entity; or 168 (iii) is not subject to supervision or control in the performance of work by: 169 (A) the unincorporated entity; or Enrolled Copy S.B. 296 - 7 - 170 (B) a person with whom the unincorporated entity contracts. 171 (c) As part of the rules made under Subsection (2)(b), the commission may define: 172 (i) "active manager"; 173 (ii) "directly or indirectly holds at least an 8% ownership interest"; and 174 (iii) "subject to supervision or control in the performance of work." 175 Section 2. Section 34A-5-102.5 is enacted to read: 176 34A-5-102.5. Supremacy over local regulations -- No special class created for 177 other purposes. 178 (1) Consistent with the requirements of Subsection 34A-5-107(15), this chapter 179 supersedes and preempts any ordinance, regulation, standard, or other legal action by a local 180 government entity, a state entity, or the governing body of a political subdivision that relates to 181 the prohibition of discrimination in employment. 182 (2) This chapter shall not be construed to create a special or protected class for any 183 purpose other than employment. 184 Section 3. Section 34A-5-102.7 is enacted to read: 185 34A-5-102.7. Nonseverability. 186 This bill is the result of the Legislature's balancing of competing interests. 187 Accordingly, if any phrase, clause, sentence, provision, or subsection enacted or amended in 188 this chapter by this bill is held invalid in a final judgment by a court of last resort, the 189 remainder of the enactments and amendments of this bill affecting this chapter shall be thereby 190 rendered without effect and void. 191 Section 4. Section 34A-5-104 is amended to read: 192 34A-5-104. Powers. 193 (1) (a) The commission has jurisdiction over the subject of employment practices and 194 discrimination made unlawful by this chapter. 195 (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and 196 for the enforcement of this chapter. 197 (2) The division may: S.B. 296 Enrolled Copy - 8 - 198 (a) appoint and prescribe the duties of [investigators and other employees and agents 199 that it] an investigator, other employee, or agent of the commission that the commission 200 considers necessary for the enforcement of this chapter; 201 (b) receive, reject, investigate, and pass upon complaints alleging: 202 (i) discrimination in: 203 (A) employment; 204 (B) an apprenticeship [programs] program; 205 (C) an on-the-job training [programs] program; [and] or 206 (D) a vocational [schools] school; or 207 (ii) the existence of a discriminatory or prohibited employment practice by: 208 (A) a person; 209 (B) an employer; 210 (C) an employment agency; 211 (D) a labor organization; 212 (E) [the employees or members] an employee or member of an employment agency or 213 labor organization; 214 (F) a joint apprenticeship committee; and 215 (G) a vocational school; 216 (c) investigate and study the existence, character, causes, and extent of discrimination 217 in employment, apprenticeship programs, on-the-job training programs, and vocational schools 218 in this state by: 219 (i) employers; 220 (ii) employment agencies; 221 (iii) labor organizations; 222 (iv) joint apprenticeship committees; and 223 (v) vocational schools; 224 (d) formulate plans for the elimination of discrimination by educational or other 225 means; Enrolled Copy S.B. 296 - 9 - 226 (e) hold hearings upon complaint made against: 227 (i) a person; 228 (ii) an employer; 229 (iii) an employment agency; 230 (iv) a labor organization; 231 (v) [the employees or members] an employee or member of an employment agency or 232 labor organization; 233 (vi) a joint apprenticeship committee; or 234 (vii) a vocational school; 235 (f) issue publications and reports of investigations and research that: 236 (i) promote good will among the various racial, religious, and ethnic groups of the 237 state; and 238 (ii) minimize or eliminate discrimination in employment because of race, color, sex, 239 religion, national origin, age, [or] disability, sexual orientation, or gender identity; 240 (g) prepare and transmit to the governor, at least once each year, reports describing: 241 (i) [its] the division's proceedings, investigations, and hearings; 242 (ii) the outcome of those hearings; 243 (iii) decisions the division [has rendered] renders; and 244 (iv) the other work performed by the division; 245 (h) recommend policies to the governor, and submit recommendation to employers, 246 employment agencies, and labor organizations to implement those policies; 247 (i) recommend [any] legislation to the governor that the division considers necessary 248 concerning discrimination because of: 249 (i) race[,]; 250 (ii) sex[,]; 251 (iii) color[,]; 252 (iv) national origin[,]; 253 (v) religion[,]; S.B. 296 Enrolled Copy - 10 - 254 (vi) age[, or]; 255 (vii) disability [to the governor that it considers necessary; and]; 256 (viii) sexual orientation; or 257 (ix) gender identity; and 258 (j) within the limits of [any] appropriations made for its operation, cooperate with other 259 agencies or organizations, both public and private, in the planning and conducting of 260 educational programs designed to eliminate discriminatory practices prohibited under this 261 chapter. 262 (3) The division shall investigate an alleged discriminatory [practices] practice 263 involving [officers or employees] an officer or employee of state government if requested to do 264 so by the Career Service Review Office. 265 (4) (a) In [any] a hearing held under this chapter, the division may: 266 (i) subpoena witnesses and compel their attendance at the hearing; 267 (ii) administer oaths and take the testimony of [any] a person under oath; and 268 (iii) compel [any] a person to produce for examination [any books, papers] a book, 269 paper, or other information relating to the matters raised by the complaint. 270 (b) The division director or a hearing examiner appointed by the division director may 271 conduct [hearings] a hearing. 272 (c) If a witness fails or refuses to obey a subpoena issued by the division, the division 273 may petition the district court to enforce the subpoena. 274 (d) [In the event] If a witness asserts a privilege against self-incrimination, testimony 275 and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of 276 Immunity. 277 Section 5. Section 34A-5-106 is amended to read: 278 34A-5-106. Discriminatory or prohibited employment practices -- Permitted 279 practices. 280 (1) It is a discriminatory or prohibited employment practice to take [any] an action 281 described in Subsections (1)(a) through (f). Enrolled Copy S.B. 296 - 11 - 282 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate 283 [any] a person, or to retaliate against, harass, or discriminate in matters of compensation or in 284 terms, privileges, and conditions of employment against [any] a person otherwise qualified, 285 because of: 286 (A) race; 287 (B) color; 288 (C) sex; 289 (D) pregnancy, childbirth, or pregnancy-related conditions; 290 (E) age, if the individual is 40 years of age or older; 291 (F) religion; 292 (G) national origin; [or] 293 (H) disability[.]; 294 (I) sexual orientation; or 295 (J) gender identity. 296 (ii) A person may not be considered "otherwise qualified," unless that person possesses 297 the following required by an employer for any particular job, job classification, or position: 298 (A) education; 299 (B) training; 300 (C) ability, with or without reasonable accommodation; 301 (D) moral character; 302 (E) integrity; 303 (F) disposition to work; 304 (G) adherence to reasonable rules and regulations; and 305 (H) other job related qualifications required by an employer. 306 (iii) (A) As used in this chapter, "to discriminate in matters of compensation" means 307 the payment of differing wages or salaries to employees having substantially equal experience, 308 responsibilities, and skill for the particular job. 309 (B) Notwithstanding Subsection (1)(a)(iii)(A): S.B. 296 Enrolled Copy - 12 - 310 (I) nothing in this chapter prevents [increases] an increase in pay as a result of 311 longevity with the employer, if the salary [increases are] increase is uniformly applied and 312 available to all employees on a substantially proportional basis; and 313 (II) nothing in this section prohibits an employer and employee from agreeing to a rate 314 of pay or work schedule designed to protect the employee from loss of Social Security payment 315 or benefits if the employee is eligible for those payments. 316 (b) An employment agency may not: 317 (i) refuse to list and properly classify for employment, or refuse to refer an individual 318 for employment, in a known available job for which the individual is otherwise qualified, 319 because of: 320 (A) race; 321 (B) color; 322 (C) sex; 323 (D) pregnancy, childbirth, or pregnancy-related conditions; 324 (E) religion; 325 (F) national origin; 326 (G) age, if the individual is 40 years of age or older; [or] 327 (H) disability; [or] 328 (I) sexual orientation; or 329 (J) gender identity; or 330 (ii) comply with a request from an employer for referral of [applicants] an applicant for 331 employment if the request indicates either directly or indirectly that the employer discriminates 332 in employment on account of: 333 (A) race; 334 (B) color; 335 (C) sex; 336 (D) pregnancy, childbirth, or pregnancy-related conditions; 337 (E) religion; Enrolled Copy S.B. 296 - 13 - 338 (F) national origin; 339 (G) age, if the individual is 40 years of age or older; [or] 340 (H) disability[.]; 341 (I) sexual orientation; or 342 (J) gender identity. 343 (c) (i) A labor organization may not for a reason listed in Subsection (1)(c)(ii): 344 (A) exclude [any] an individual otherwise qualified from full membership rights in the 345 labor organization[,]; 346 (B) expel the individual from membership in the labor organization[,]; or 347 (C) otherwise discriminate against or harass [any of the labor organization's members] 348 a member of the labor organization in full employment of work opportunity, or representation[, 349 because of:]. 350 (ii) A labor organization may not take an action listed in this Subsection (1)(c) because 351 of: 352 [(i)] (A) race; 353 [(ii)] (B) sex; 354 [(iii)] (C) pregnancy, childbirth, or pregnancy-related conditions; 355 [(iv)] (D) religion; 356 [(v)] (E) national origin; 357 [(vi)] (F) age, if the individual is 40 years of age or older; [or] 358 [(vii)] (G) disability[.]; 359 (H) sexual orientation; or 360 (I) gender identity. 361 (d) (i) Unless based upon a bona fide occupational qualification, or required by and 362 given to an agency of government for a security [reasons] reason, an employer, employment 363 agency, or labor organization may not do the following if the statement, advertisement, 364 publication, form, or inquiry violates Subsection (1)(d)(ii): 365 (A) print, [or] circulate, or cause to be printed or circulated[, any] a statement, S.B. 296 Enrolled Copy - 14 - 366 advertisement, or publication[,]; 367 (B) use [any] a form of application for employment or membership[,]; or 368 (C) make any inquiry in connection with prospective employment or membership [that 369 expresses, either directly or indirectly: (i) any]. 370 (ii) This Subsection (1)(d) applies to a statement, advertisement, publication, form, or 371 inquiry that directly expresses a limitation, specification, or discrimination as to: 372 (A) race; 373 (B) color; 374 (C) religion; 375 (D) sex; 376 (E) pregnancy, childbirth, or pregnancy-related conditions; 377 (F) national origin; 378 (G) age, if the individual is 40 years of age or older; [or] 379 (H) disability; [or] 380 [(ii) the intent to make any limitation, specification, or discrimination described in 381 Subsection (1)(d)(i).] 382 (I) sexual orientation; or 383 (J) gender identity. 384 (e) A person, whether or not an employer, an employment agency, a labor organization, 385 or [the employees or members] an employee or member of an employer, employment agency, 386 or labor organization, may not: 387 (i) aid, incite, compel, or coerce the doing of an act defined in this section to be a 388 discriminatory or prohibited employment practice; 389 (ii) obstruct or prevent [any] a person from complying with this chapter, or any order 390 issued under this chapter; or 391 (iii) attempt, either directly or indirectly, to commit [any] an act prohibited in this 392 section. 393 (f) (i) An employer, labor organization, joint apprenticeship committee, or vocational Enrolled Copy S.B. 296 - 15 - 394 school[,] providing, coordinating, or controlling an apprenticeship [programs,] program or 395 providing, coordinating, or controlling an on-the-job-training [programs] program, instruction, 396 training, or retraining [programs] program may not: 397 (A) deny to, or withhold from, any qualified person[,] the right to be admitted to[,] or 398 participate in [any] an apprenticeship training program, on-the-job-training program, or other 399 occupational instruction, training, or retraining program because of: 400 (I) race; 401 (II) color; 402 (III) sex; 403 (IV) pregnancy, childbirth, or pregnancy-related conditions; 404 (V) religion; 405 (VI) national origin; 406 (VII) age, if the individual is 40 years of age or older; [or] 407 (VIII) disability; 408 (IX) sexual orientation; or 409 (X) gender identity; 410 (B) discriminate against or harass [any] a qualified person in that person's pursuit of 411 [programs] a program described in Subsection (1)(f)(i)(A)[, or to] because of: 412 (I) race; 413 (II) color; 414 (III) sex; 415 (IV) pregnancy, childbirth, or pregnancy-related conditions; 416 (V) religion; 417 (VI) national origin; 418 (VII) age, if the individual is 40 years of age or older; 419 (VIII) disability; 420 (IX) sexual orientation; or 421 (X) gender identity; S.B. 296 Enrolled Copy - 16 - 422 (C) discriminate against [such] a qualified person in the terms, conditions, or privileges 423 of [programs] a program described in Subsection (1)(f)(i)(A), because of: 424 (I) race; 425 (II) color; 426 (III) sex; 427 (IV) pregnancy, childbirth, or pregnancy-related conditions; 428 (V) religion; 429 (VI) national origin; 430 (VII) age, if the individual is 40 years of age or older; [or] 431 (VIII) disability; [or] 432 (IX) sexual orientation; or 433 (X) gender identity; or 434 [(C)] (D) except as provided in Subsection (1)(f)(ii), print, publish, or cause to be 435 printed or published, [any] a notice or advertisement relating to employment by the employer, 436 or membership in or [any] a classification or referral for employment by a labor organization, 437 or relating to [any] a classification or referral for employment by an employment agency, 438 indicating [any] a preference, limitation, specification, or discrimination based on: 439 (I) race; 440 (II) color; 441 (III) sex; 442 (IV) pregnancy, childbirth, or pregnancy-related conditions; 443 (V) religion; 444 (VI) national origin; 445 (VII) age, if the individual is 40 years of age or older; [or] 446 (VIII) disability[.]; 447 (IX) sexual orientation; or 448 (X) gender identity. 449 (ii) Notwithstanding Subsection (1)(f)(i)[(C)](D), if the following is a bona fide Enrolled Copy S.B. 296 - 17 - 450 occupational qualification for employment, a notice or advertisement described in Subsection 451 (1)(f)(i)[(C)](D) may indicate a preference, limitation, specification, or discrimination based 452 on: 453 (A) race; 454 (B) color; 455 (C) religion; 456 (D) sex; 457 (E) pregnancy, childbirth, or pregnancy-related conditions; 458 (F) age; 459 (G) national origin; [or] 460 (H) disability[.]; 461 (I) sexual orientation; or 462 (J) gender identity. 463 (2) [Nothing contained in] Subsections (1)(a) through (1)(f) [shall] may not be 464 construed to prevent: 465 (a) the termination of employment of an individual who, with or without reasonable 466 accommodation, is physically, mentally, or emotionally unable to perform the duties required 467 by that individual's employment; 468 (b) the variance of insurance premiums or coverage on account of age; or 469 (c) a restriction on the activities of [individuals licensed by the liquor authority with 470 respect to persons] a person licensed in accordance with Title 32B, Alcoholic Beverage Control 471 Act, with respect to an individual who is under 21 years of age. 472 (3) (a) It is not a discriminatory or prohibited employment practice: 473 (i) for an employer to hire and employ [employees] an employee, for an employment 474 agency to classify or refer for employment [any] an individual, for a labor organization to 475 classify its membership or to classify or refer for employment [any] an individual, or for an 476 employer, labor organization, or joint labor-management committee controlling an 477 apprenticeship or other training or retraining [programs] program to admit or employ [any] an S.B. 296 Enrolled Copy - 18 - 478 individual in [any such] the program[,] on the basis of religion, sex, pregnancy, childbirth, or 479 pregnancy-related conditions, age, national origin, [or] disability, sexual orientation, or gender 480 identity in those certain instances [where] when religion, sex, pregnancy, childbirth, or 481 pregnancy-related conditions, age, if the individual is 40 years of age or older, national origin, 482 [or] disability, sexual orientation, or gender identity is a bona fide occupational qualification 483 reasonably necessary to the normal operation of that particular business or enterprise; 484 (ii) for a school, college, university, or other educational institution to hire and employ 485 [employees] an employee of a particular religion if: 486 (A) the school, college, university, or other educational institution is, in whole or in 487 substantial part, owned, supported, controlled, or managed by a particular religious corporation, 488 association, or society; or 489 (B) the curriculum of the school, college, university, or other educational institution is 490 directed toward the propagation of a particular religion; 491 (iii) for an employer to give preference in employment to: 492 (A) the employer's: 493 (I) spouse; 494 (II) child; or 495 (III) son-in-law or daughter-in-law; 496 (B) [any] a person for whom the employer is or would be liable to furnish financial 497 support if [those persons] the person were unemployed; 498 (C) [any] a person to whom the employer during the preceding six months [has 499 furnished] furnishes more than one-half of total financial support regardless of whether or not 500 the employer was or is legally obligated to furnish support; or 501 (D) [any] a person whose education or training [was] is substantially financed by the 502 employer for a period of two years or more. 503 (b) Nothing in this chapter applies to [any] a business or enterprise on or near an Indian 504 reservation with respect to [any] a publicly announced employment practice of the business or 505 enterprise under which preferential treatment is given to [any] an individual because that Enrolled Copy S.B. 296 - 19 - 506 individual is a native American Indian living on or near an Indian reservation. 507 (c) Nothing in this chapter [shall] may be interpreted to require [any] an employer, 508 employment agency, labor organization, vocational school, joint labor-management committee, 509 or apprenticeship program subject to this chapter to grant preferential treatment to [any] an 510 individual or to [any] a group because of the race, color, religion, sex, age, national origin, [or] 511 disability, sexual orientation, or gender identity of the individual or group on account of an 512 imbalance [which] that may exist with respect to the total number or percentage of persons of 513 [any] a race, color, religion, sex, age, national origin, [or] disability, sexual orientation, or 514 gender identity employed by [any] an employer, referred or classified for employment by an 515 employment agency or labor organization, admitted to membership or classified by [any] a 516 labor organization, or admitted to or employed in, any apprenticeship or other training 517 program, in comparison with the total number or percentage of persons of that race, color, 518 religion, sex, age, national origin, [or] disability, sexual orientation, or gender identity in any 519 community or county or in the available work force in any community or county. 520 (4) It is not a discriminatory or prohibited practice with respect to age to observe the 521 terms of a bona fide seniority system or any bona fide employment benefit plan such as a 522 retirement, pension, or insurance plan that is not a subterfuge to evade the purposes of this 523 chapter, except that [no such] an employee benefit plan [shall] may not excuse the failure to 524 hire an individual. 525 (5) Notwithstanding Subsection (4), or [any other statutory provision] another statute to 526 the contrary, a person may not be subject to involuntary termination or retirement from 527 employment on the basis of age alone, if the individual is 40 years of age or older, except: 528 (a) under Subsection (6); and 529 (b) when age is a bona fide occupational qualification. 530 (6) Nothing in this section prohibits compulsory retirement of an employee who has 531 attained at least 65 years of age, and who, for the two-year period immediately before 532 retirement, is employed in a bona fide executive or a high policymaking position, if: 533 (a) that employee is entitled to an immediate nonforfeitable annual retirement benefit S.B. 296 Enrolled Copy - 20 - 534 from the employee's employer's pension, profit-sharing, savings, or deferred compensation 535 plan, or any combination of those plans; and 536 (b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000. 537 Section 6. Section 34A-5-107 is amended to read: 538 34A-5-107. Procedure for aggrieved person to file claim -- Investigations -- 539 Adjudicative proceedings -- Settlement -- Reconsideration -- Determination. 540 (1) (a) [Any] A person claiming to be aggrieved by a discriminatory or prohibited 541 employment practice may, or that person's attorney or agent may, make, sign, and file with the 542 division a request for agency action. 543 (b) [Every] A request for agency action shall be verified under oath or affirmation. 544 (c) A request for agency action made under this section shall be filed within 180 days 545 after the alleged discriminatory or prohibited employment practice [occurred] occurs. 546 (d) The division may transfer a request for agency action filed with the division 547 pursuant to this section to the federal Equal Employment Opportunity Commission in 548 accordance with [the provisions of any] a work-share agreement that is: 549 (i) between the division and the Equal Employment Opportunity Commission; and 550 (ii) in effect on the day on which the request for agency action is transferred. 551 (2) [Any] An employer, labor organization, joint apprenticeship committee, or 552 vocational school who has an employee or member who refuses or threatens to refuse to 553 comply with this chapter may file with the division a request for agency action asking the 554 division for assistance to obtain the employee's or member's compliance by conciliation or 555 other remedial action. 556 (3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the 557 division shall promptly assign an investigator to attempt a settlement between the parties by 558 conference, conciliation, or persuasion. 559 (b) If no settlement is reached, the investigator shall make a prompt impartial 560 investigation of all allegations made in the request for agency action. 561 (c) The division and its staff, agents, and employees: Enrolled Copy S.B. 296 - 21 - 562 (i) shall conduct every investigation in fairness to all parties and agencies involved; 563 and 564 (ii) may not attempt a settlement between the parties if it is clear that no discriminatory 565 or prohibited employment practice has occurred. 566 (d) An aggrieved party may withdraw the request for agency action prior to the 567 issuance of a final order. 568 (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator 569 uncovers insufficient evidence during the investigation to support the allegations of a 570 discriminatory or prohibited employment practice set out in the request for agency action, the 571 investigator shall formally report these findings to the director or the director's designee. 572 (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director 573 or the director's designee may issue a determination and order for dismissal of the adjudicative 574 proceeding. 575 (c) A party may make a written request to the Division of Adjudication for an 576 evidentiary hearing to review de novo the director's or the director's designee's determination 577 and order within 30 days of the date the determination and order for dismissal is issued. 578 (d) If the director or the director's designee receives no timely request for a hearing, the 579 determination and order issued by the director or the director's designee becomes the final order 580 of the commission. 581 (5) (a) If the initial attempts at settlement are unsuccessful and the investigator 582 uncovers sufficient evidence during the investigation to support the allegations of a 583 discriminatory or prohibited employment practice set out in the request for agency action, the 584 investigator shall formally report these findings to the director or the director's designee. 585 (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the 586 director or the director's designee may issue a determination and order based on the 587 investigator's report. 588 (ii) A determination and order issued under this Subsection (5)(b) shall: 589 (A) direct the respondent to cease any discriminatory or prohibited employment S.B. 296 Enrolled Copy - 22 - 590 practice; and 591 (B) provide relief to the aggrieved party as the director or the director's designee 592 determines is appropriate. 593 (c) A party may file a written request to the Division of Adjudication for an evidentiary 594 hearing to review de novo the director's or the director's designee's determination and order 595 within 30 days of the date the determination and order is issued. 596 (d) If the director or the director's designee receives no timely request for a hearing, the 597 determination and order issued by the director or the director's designee in accordance with 598 Subsection (5)(b) becomes the final order of the commission. 599 (6) In [any] an adjudicative proceeding to review the director's or the director's 600 designee's determination that a prohibited employment practice has occurred, the division shall 601 present the factual and legal basis of the determination or order issued under Subsection (5). 602 (7) (a) [Prior to] Before the commencement of an evidentiary hearing: 603 (i) the party filing the request for agency action may reasonably and fairly amend any 604 allegation; and 605 (ii) the respondent may amend its answer. 606 (b) An amendment permitted under this Subsection (7) may be made: 607 (i) during or after a hearing; and 608 (ii) only with permission of the presiding officer. 609 (8) (a) If, upon reviewing all the evidence at a hearing, the presiding officer finds that a 610 respondent has not engaged in a discriminatory or prohibited employment practice, the 611 presiding officer shall issue an order dismissing the request for agency action containing the 612 allegation of a discriminatory or prohibited employment practice. 613 (b) The presiding officer may order that the respondent be reimbursed by the 614 complaining party for the respondent's attorneys' fees and costs. 615 (9) If, upon reviewing all the evidence at the hearing, the presiding officer finds that a 616 respondent has engaged in a discriminatory or prohibited employment practice, the presiding 617 officer shall issue an order requiring the respondent to: Enrolled Copy S.B. 296 - 23 - 618 (a) cease any discriminatory or prohibited employment practice; and 619 (b) provide relief to the complaining party, including: 620 (i) reinstatement; 621 (ii) back pay and benefits; 622 (iii) [attorneys'] attorney fees; and 623 (iv) costs. 624 (10) Conciliation between the parties is to be urged and facilitated at all stages of the 625 adjudicative process. 626 (11) (a) Either party may file with the Division of Adjudication a written request for 627 review before the commissioner or Appeals Board of the order issued by the presiding officer 628 in accordance with: 629 (i) Section 63G-4-301; and 630 (ii) Chapter 1, Part 3, Adjudicative Proceedings. 631 (b) If there is no timely request for review, the order issued by the presiding officer 632 becomes the final order of the commission. 633 (12) An order of the commission under Subsection (11)(a) is subject to judicial review 634 as provided in: 635 (a) Section 63G-4-403; and 636 (b) Chapter 1, Part 3, Adjudicative Proceedings. 637 (13) The commission [shall have authority to] may make rules concerning procedures 638 under this chapter in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking 639 Act. 640 (14) The commission and its staff may not divulge or make public [any] information 641 gained from [any] an investigation, settlement negotiation, or proceeding before the 642 commission except as provided in Subsections (14)(a) through (d). 643 (a) Information used by the director or the director's designee in making [any] a 644 determination may be provided to all interested parties for the purpose of preparation for and 645 participation in proceedings before the commission. S.B. 296 Enrolled Copy - 24 - 646 (b) General statistical information may be disclosed provided the identities of the 647 individuals or parties are not disclosed. 648 (c) Information may be disclosed for inspection by the attorney general or other legal 649 representatives of the state or the commission. 650 (d) Information may be disclosed for information and reporting requirements of the 651 federal government. 652 (15) The procedures contained in this section are the exclusive remedy under state law 653 for employment discrimination based upon: 654 (a) race; 655 (b) color; 656 (c) sex; 657 (d) retaliation; 658 (e) pregnancy, childbirth, or pregnancy-related conditions; 659 (f) age; 660 (g) religion; 661 (h) national origin; [or] 662 (i) disability[.]; 663 (j) sexual orientation; or 664 (k) gender identity. 665 (16) (a) The commencement of an action under federal law for relief based upon [any] 666 an act prohibited by this chapter bars the commencement or continuation of [any] an 667 adjudicative proceeding before the commission in connection with the same [claims] claim 668 under this chapter. 669 (b) The transfer of a request for agency action to the Equal Employment Opportunity 670 Commission in accordance with Subsection (1)(d) is considered the commencement of an 671 action under federal law for purposes of Subsection (16)(a). 672 (c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair the 673 exclusive remedy provision set forth in Subsection (15). Enrolled Copy S.B. 296 - 25 - 674 Section 7. Section 34A-5-109 is enacted to read: 675 34A-5-109. Application to employee dress and grooming standards. 676 This chapter may not be interpreted to prohibit an employer from adopting reasonable 677 dress and grooming standards not prohibited by other provisions of federal or state law, 678 provided that the employer's dress and grooming standards afford reasonable accommodations 679 based on gender identity to all employees. 680 Section 8. Section 34A-5-110 is enacted to read: 681 34A-5-110. Application to sex-specific facilities. 682 This chapter may not be interpreted to prohibit an employer from adopting reasonable 683 rules and policies that designate sex-specific facilities, including restrooms, shower facilities, 684 and dressing facilities, provided that the employer's rules and policies adopted under this 685 section afford reasonable accommodations based on gender identity to all employees. 686 Section 9. Section 34A-5-111 is enacted to read: 687 34A-5-111. Application to the freedom of expressive association and the free 688 exercise of religion. 689 This chapter may not be interpreted to infringe upon the freedom of expressive 690 association or the free exercise of religion protected by the First Amendment of the United 691 States Constitution and Article I, Sections 1, 4, and 15 of the Utah Constitution. 692 Section 10. Section 34A-5-112 is enacted to read: 693 34A-5-112. Religious liberty protections -- Expressing beliefs and commitments in 694 workplace -- Prohibition on employment actions against certain employee speech. 695 (1) An employee may express the employee's religious or moral beliefs and 696 commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on 697 equal terms with similar types of expression of beliefs or commitments allowed by the 698 employer in the workplace, unless the expression is in direct conflict with the essential 699 business-related interests of the employer. 700 (2) An employer may not discharge, demote, terminate, or refuse to hire any person, or 701 retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and S.B. 296 Enrolled Copy - 26 - 702 conditions of employment against any person otherwise qualified, for lawful expression or 703 expressive activity outside of the workplace regarding the person's religious, political, or 704 personal convictions, including convictions about marriage, family, or sexuality, unless the 705 expression or expressive activity is in direct conflict with the essential business-related 706 interests of the employer. 707 Section 11. Section 57-21-2 is amended to read: 708 57-21-2. Definitions. 709 As used in this chapter: 710 (1) "Affiliate" means the same as that term is defined in Section 16-6a-102. 711 [(1)] (2) "Aggrieved person" includes [any] a person who: 712 (a) claims to have been injured by a discriminatory housing practice; or 713 (b) believes that the person will be injured by a discriminatory housing practice that is 714 about to occur. 715 [(2)] (3) "Commission" means the Labor Commission. 716 [(3)] (4) "Complainant" means an aggrieved person, including the director, who has 717 commenced a complaint with the division. 718 [(4)] (5) "Conciliation" means the attempted resolution of [issues] an issue raised [by] 719 in a complaint of discriminatory housing practices by the investigation of the complaint 720 through informal negotiations involving the complainant, the respondent, and the division. 721 [(5)] (6) "Conciliation agreement" means a written agreement setting forth the 722 resolution of the issues in conciliation. 723 [(6)] (7) "Conciliation conference" means the attempted resolution of [issues] an issue 724 raised [by] in a complaint or by the investigation of a complaint through informal negotiations 725 involving the complainant, the respondent, and the division. The conciliation conference is not 726 subject to Title 63G, Chapter 4, Administrative Procedures Act. 727 [(7)] (8) "Covered multifamily [dwellings"] dwelling" means: 728 (a) [buildings] a building consisting of four or more dwelling units if the [buildings 729 have] building has one or more elevators; and Enrolled Copy S.B. 296 - 27 - 730 (b) the ground floor units in other buildings consisting of four or more dwelling units. 731 [(8)] (9) "Director" means the director of the division or a designee. 732 [(9)] (10) (a) "Disability" means a physical or mental impairment that substantially 733 limits one or more of a person's major life activities, including a person having a record of such 734 an impairment or being regarded as having such an impairment. 735 (b) "Disability" does not include current illegal use of, or addiction to, any federally 736 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 737 Sec. 802. 738 [(10)] (11) "Discriminate" includes segregate or separate. 739 [(11)] (12) "Discriminatory housing practice" means an act that is unlawful under this 740 chapter. 741 [(12)] (13) "Division" means the Division of Antidiscrimination and Labor established 742 under the commission. 743 [(13) (a)] (14) "Dwelling" means [any]: 744 (a) a building or structure, or a portion of a building or structure, occupied as, [or] 745 designed as, or intended for occupancy as[,] a residence of one or more families[.]; or 746 (b) ["Dwelling" also includes] vacant land that is offered for sale or lease for the 747 construction or location of a dwelling as described in Subsection [(13)] (14)(a). 748 [(14)] (15) (a) "Familial status" means one or more individuals who have not attained 749 the age of 18 years being domiciled with: 750 (i) a parent or another person having legal custody of the [individual] one or more 751 individuals; or 752 (ii) the designee of the parent or other person having custody, with the written 753 permission of the parent or other person. 754 (b) The protections afforded against discrimination on the basis of familial status 755 [shall] apply to [any] a person who: 756 (i) is pregnant; 757 (ii) is in the process of securing legal custody of any individual who has not attained S.B. 296 Enrolled Copy - 28 - 758 the age of 18 years; or 759 (iii) is a single individual. 760 (16) "Gender identity" has the meaning provided in the Diagnostic and Statistical 761 Manual (DSM-5). A person's gender identity can be shown by providing evidence, including, 762 but not limited to, medical history, care or treatment of the gender identity, consistent and 763 uniform assertion of the gender identity, or other evidence that the gender identity is sincerely 764 held, part of a person's core identity, and not being asserted for an improper purpose. 765 [(15)] (17) "National origin" means the place of birth of an individual or of any lineal 766 ancestors. 767 [(16)] (18) "Person" includes one or more individuals, corporations, limited liability 768 companies, partnerships, associations, labor organizations, legal representatives, mutual 769 companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in 770 cases under the United States Bankruptcy Code, receivers, and fiduciaries. 771 [(17)] (19) "Presiding officer" has the same meaning as provided in Section 772 63G-4-103. 773 [(18)] (20) "Real estate broker" or "salesperson" means a principal broker, an associate 774 broker, or a sales agent as those terms are defined in Section 61-2f-102. 775 [(19)] (21) "Respondent" means a person against whom a complaint of housing 776 discrimination has been initiated. 777 [(20)] (22) "Sex" means gender and includes pregnancy, childbirth, and disabilities 778 related to pregnancy or childbirth. 779 (23) "Sexual orientation" means an individual's actual or perceived orientation as 780 heterosexual, homosexual, or bisexual. 781 [(21)] (24) "Source of income" means the verifiable condition of being a recipient of 782 federal, state, or local assistance, including medical assistance, or of being a tenant receiving 783 federal, state, or local subsidies, including rental assistance or rent supplements. 784 Section 12. Section 57-21-2.5 is enacted to read: 785 57-21-2.5. Supremacy over local regulations -- No special class created for other Enrolled Copy S.B. 296 - 29 - 786 purposes. 787 (1) This chapter supersedes and preempts any ordinance, regulation, standard, or other 788 legal action by a local government entity, a state entity, or the governing body of a political 789 subdivision that relates to the prohibition of discrimination in housing. 790 (2) This chapter shall not be construed to create a special or protected class for any 791 purpose other than housing. 792 Section 13. Section 57-21-2.7 is enacted to read: 793 57-21-2.7. Nonseverability. 794 This bill is the result of the Legislature's balancing of competing interests. 795 Accordingly, if any phrase, clause, sentence, provision, or subsection enacted or amended in 796 this chapter by this bill is held invalid in a final judgment by a court of last resort, the 797 remainder of the enactments and amendments of this bill affecting this chapter shall be thereby 798 rendered without effect and void. 799 Section 14. Section 57-21-3 is amended to read: 800 57-21-3. Exemptions -- Sale by private individuals -- Nonprofit organizations -- 801 Noncommercial transactions. 802 (1) This chapter does not apply to [any] a single-family dwelling unit sold or rented by 803 its owner if: 804 (a) the owner is not a partnership, association, corporation, or other business entity; 805 (b) the owner does not own [any] an interest in four or more single-family dwelling 806 units held for sale or lease at the same time; 807 (c) during a 24-month period, the owner does not sell two or more single-family 808 dwelling units in which the owner was not residing or was not the most recent resident at the 809 time of sale; 810 (d) the owner does not retain or use the facilities or services of [any] a real estate 811 broker or salesperson; and 812 (e) the owner does not use [any] a discriminatory housing practice under Subsection 813 57-21-5(2) in the sale or rental of the dwelling. S.B. 296 Enrolled Copy - 30 - 814 (2) This chapter does not apply to a dwelling or a temporary or permanent residence 815 facility [operated by a nonprofit or charitable organization, including any dormitory operated 816 by a public or private educational institution,] if: 817 (a) the discrimination is by sex, sexual orientation, gender identity, or familial status 818 for reasons of personal modesty or privacy, or in the furtherance of a religious institution's free 819 exercise of religious rights under the First Amendment of the United States Constitution[.] or 820 the Utah Constitution; and 821 (b) the dwelling or the temporary or permanent residence facility is: 822 (i) operated by a nonprofit or charitable organization; 823 (ii) owned by, operated by, or under contract with a religious organization, a religious 824 association, a religious educational institution, or a religious society; 825 (iii) owned by, operated by, or under contract with an affiliate of an entity described in 826 Subsection (2)(b)(ii); or 827 (iv) owned by or operated by a person under contract with an entity described in 828 Subsection (2)(b)(ii). 829 (3) This chapter, except for Subsection 57-21-5(2), does not apply to the rental of a 830 room in [the] a single-family dwelling by an owner-occupant of [a] the single-family dwelling 831 to another person if: 832 (a) the dwelling is designed for occupancy by four or fewer families[,]; and 833 (b) the owner-occupant resides in one of the units. 834 [(4) This chapter does not prohibit a religious organization, association, or society, or 835 any nonprofit institution or organization operated, supervised, or controlled by or in 836 conjunction with a religious organization, association, or society, from] 837 (4) (a) (i) Unless membership in a religion is restricted by race, color, sex, or national 838 origin, this chapter does not prohibit an entity described in Subsection (4)(a)(ii) from: 839 (A) limiting the sale, rental, or occupancy of [dwellings it] a dwelling or temporary or 840 permanent residence facility the entity owns or operates for primarily noncommercial purposes 841 to persons of the same religion[,]; or [from giving preference to such persons, unless Enrolled Copy S.B. 296 - 31 - 842 membership in the religion is restricted by race, color, sex, or national origin.] 843 (B) giving preference to persons of the same religion when selling, renting, or selecting 844 occupants for a dwelling, or a temporary or permanent residence facility, the entity owns or 845 operates for primarily noncommercial purposes. 846 (ii) The following entities are entitled to the exemptions described in Subsection 847 (4)(a)(i): 848 (A) a religious organization, association, or society; or 849 (B) a nonprofit institution or organization operated, supervised, or controlled by or in 850 conjunction with a religious organization, association, or society. 851 (b) (i) This chapter does not prohibit an entity described in Subsection (4)(b)(ii) from: 852 (A) limiting the sale, rental, or occupancy of a dwelling, or a temporary or permanent 853 residence facility, the entity owns or operates to persons of a particular religion, sex, sexual 854 orientation, or gender identity; or 855 (B) giving preference to persons of a particular religion, sex, sexual orientation, or 856 gender identity when selling, renting, or selecting occupants for a dwelling, or a temporary or 857 permanent residence facility, the entity owns or operates. 858 (ii) The following entities are entitled to the exemptions described in Subsection 859 (4)(b)(i): 860 (A) an entity described in Subsection (4)(a)(ii); and 861 (B) a person who owns a dwelling, or a temporary or permanent residence facility, that 862 is under contract with an entity described in Subsection (4)(a)(ii). 863 (5) [This] (a) If the conditions of Subsection (5)(b) are met, this chapter does not 864 prohibit a private club not open to the public, including [fraternities and sororities] a fraternity 865 or sorority associated with [institutions] an institution of higher education, from: 866 (i) limiting the rental or occupancy of lodgings to members; or [from] 867 (ii) giving preference to its members[, but only if it]. 868 (b) This Subsection (5) applies only if the private club owns or operates the lodgings as 869 an incident to its primary purpose and not for a commercial purpose. S.B. 296 Enrolled Copy - 32 - 870 (6) This chapter does not prohibit distinctions based on inability to fulfill the terms and 871 conditions, including financial obligations, of a lease, rental agreement, contract of purchase or 872 sale, mortgage, trust deed, or other financing agreement. 873 (7) This chapter does not prohibit [any] a nonprofit educational institution from: 874 (a) requiring its single students to live in [housing approved, operated, or owned by the 875 institution] a dwelling, or a temporary or permanent residence facility, that is owned by, 876 operated by, or under contract with the nonprofit educational institution; 877 (b) segregating [housing that the institution approves, operates, or owns] a dwelling, or 878 a temporary or permanent residence facility, that is owned by, operated by, or under contract 879 with the nonprofit educational institution on the basis of sex or familial status or both: 880 (i) for reasons of personal modesty or privacy[,]; or 881 (ii) in the furtherance of a religious institution's free exercise of religious rights under 882 the First Amendment of the United States Constitution or the Utah Constitution; or 883 (c) otherwise assisting [others] another person in making [sex-segregated housing] a 884 dwelling, or a temporary or permanent residence facility, available to students on a 885 sex-segregated basis as may be permitted by: 886 (i) regulations implementing the federal Fair Housing Amendments Act of 1988 [and]; 887 (ii) Title IX of the Education Amendments of 1972[.]; or 888 (iii) other applicable law. 889 (8) This chapter does not prohibit any reasonable local, state, or federal [restrictions] 890 restriction regarding the maximum number of occupants permitted to occupy a 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 895 1968, as amended. 896 Section 15. Section 57-21-5 is amended to read: 897 57-21-5. Discriminatory practices enumerated -- Protected persons, classes Enrolled Copy S.B. 296 - 33 - 898 enumerated. 899 (1) It is a discriminatory housing practice to do any of the following because of a 900 person's race, color, religion, sex, national origin, familial status, source of income, [or] 901 disability, sexual orientation, or gender identity: 902 (a) (i) refuse to sell or rent after the making of a bona fide offer[,]; 903 (ii) refuse to negotiate for the sale or rental[,]; or 904 (iii) otherwise deny or make unavailable [any] a dwelling from any person; 905 (b) discriminate against [any] a person in the terms, conditions, or privileges: 906 (i) of the sale or rental of [any] a dwelling; or 907 (ii) in providing facilities or services in connection with the dwelling; or 908 (c) represent to [any] a person that [any] a dwelling is not available for inspection, sale, 909 or rental when [in fact] the dwelling is available. 910 (2) It is a discriminatory housing practice to make a representation orally or in writing 911 or make, print, circulate, publish, post, or cause to be made, printed, circulated, published, or 912 posted any notice, statement, or advertisement, or to use any application form for the sale or 913 rental of a dwelling, that directly or indirectly expresses any preference, limitation, or 914 discrimination based on race, color, religion, sex, national origin, familial status, source of 915 income, [or] disability, sexual orientation, or gender identity, or expresses any intent to make 916 any such preference, limitation, or discrimination. 917 (3) It is a discriminatory housing practice to induce or attempt to induce, for profit, 918 [any] a person to buy, sell, or rent [any] a dwelling by making [representations] a 919 representation about the entry or prospective entry into the neighborhood of persons of a 920 particular race, color, religion, sex, national origin, familial status, source of income, [or] 921 disability, sexual orientation, or gender identity. 922 (4) A discriminatory housing practice includes: 923 (a) a refusal to permit, at the expense of the person with a disability, reasonable 924 modifications of existing premises occupied or to be occupied by the person if the 925 modifications are necessary to afford that person full enjoyment of the premises, except that in S.B. 296 Enrolled Copy - 34 - 926 the case of a rental, the landlord, where it is reasonable to do so, may condition permission for 927 a modification on the renter agreeing to restore the interior of the premises, when reasonable, to 928 the condition that existed before the modification, reasonable wear and tear excepted; 929 (b) a refusal to make a reasonable [accommodations in rules, policies, practices, or 930 services when the accommodations] accommodation in a rule, policy, practice, or service when 931 the accommodation may be necessary to afford the person equal opportunity to use and enjoy a 932 dwelling; and 933 (c) in connection with the design and construction of covered multifamily dwellings for 934 first occupancy after March 13, 1991, a failure to design and construct [those] the covered 935 multifamily dwellings in a manner that: 936 (i) the covered multifamily dwellings have at least one building entrance on an 937 accessible route, unless it is impracticable to have one because of the terrain or unusual 938 characteristics of the site; and 939 (ii) with respect to covered multifamily dwellings with a building entrance on an 940 accessible route: 941 (A) the public use and common use portions of the covered multifamily dwelling are 942 readily accessible to and usable by a person with a disability; 943 (B) all the doors designed to allow passage into and within the covered multifamily 944 dwellings are sufficiently wide to allow passage by a person with a disability who is in a 945 wheelchair; and 946 (C) all premises within [these] the covered multifamily dwellings contain the following 947 features of adaptive design: 948 (I) an accessible route into and through the covered multifamily dwelling; 949 (II) light switches, electrical outlets, thermostats, and other environmental controls in 950 accessible locations; 951 (III) reinforcements in the bathroom walls to allow later installation of grab bars; and 952 (IV) kitchens and bathrooms such that an individual in a wheelchair can maneuver 953 about and use the space. Enrolled Copy S.B. 296 - 35 - 954 (5) This section also applies to discriminatory housing practices because of race, color, 955 religion, sex, national origin, familial status, source of income, [or] disability, sexual 956 orientation, or gender identity based upon a person's association with another person. 957 Section 16. Section 57-21-6 is amended to read: 958 57-21-6. Discriminatory housing practices regarding residential real 959 estate-related transactions -- Discriminatory housing practices regarding the provisions 960 of brokerage services. 961 (1) (a) It is a discriminatory housing practice for [any] a person whose business 962 includes engaging in residential real estate-related transactions to discriminate against [any] a 963 person in making available [such] a residential real estate-related transaction, or in the terms or 964 conditions of the residential real estate-related transaction, because of race, color, religion, sex, 965 disability, familial status, source of income, [or] national origin, sexual orientation, or gender 966 identity. 967 (b) Residential real estate-related transactions include: 968 [(a)] (i) making or purchasing loans or providing other financial assistance: 969 [(i)] (A) for purchasing, constructing, improving, repairing, or maintaining a dwelling; 970 or 971 [(ii)] (B) secured by residential real estate; or 972 [(b)] (ii) selling, brokering, or appraising residential real property. 973 (2) It is a discriminatory housing practice to, because of race, color, religion, sex, 974 disability, familial status, source of income, national origin, sexual orientation, or gender 975 identity: 976 (a) deny [any] a person access to, or membership or participation in, [any] a 977 multiple-listing service, real estate brokers' organization, or other service, organization, or 978 facility relating to the business of selling or renting dwellings; or [to] 979 (b) discriminate against [any] a person in the terms or conditions of access, 980 membership, or participation in the organization, service, or facility [because of race, color, 981 religion, sex, disability, familial status, source of income, or national origin]. S.B. 296 Enrolled Copy - 36 - 982 (3) This section also applies to a discriminatory housing [practices] practice because of 983 race, color, religion, sex, national origin, familial status, source of income, [or] disability, 984 sexual orientation, or gender identity based upon a person's association with another person. 985 Section 17. Section 57-21-7 is amended to read: 986 57-21-7. Prohibited conduct -- Aiding or abetting in discriminatory actions -- 987 Obstruction of division investigation -- Reprisals. 988 (1) It is a discriminatory housing practice to do any of the following: 989 (a) coerce, intimidate, threaten, or interfere with [any] a person: 990 (i) in the exercise or enjoyment of [any] a right granted or protected under this chapter; 991 (ii) because that person exercised [any] a right granted or protected under this chapter; 992 or 993 (iii) because that person aided or encouraged any other person in the exercise or 994 enjoyment of [any] a right granted or protected under this chapter; 995 (b) aid, abet, incite, compel, or coerce a person to engage in [any of the practices] a 996 practice prohibited by this chapter; 997 (c) attempt to aid, abet, incite, compel, or coerce a person to engage in [any of the 998 practices] a practice prohibited by this chapter; 999 (d) obstruct or prevent [any] a person from complying with this chapter, or any order 1000 issued under this chapter; 1001 (e) resist, prevent, impede, or interfere with the director or [any division employees or 1002 representatives] a division employee or representative in the performance of duty under this 1003 chapter; or 1004 (f) engage in [any] a reprisal against [any] a person because that person: 1005 (i) opposed a practice prohibited under this chapter; or 1006 (ii) filed a complaint, testified, assisted, or participated in any manner in [any] an 1007 investigation, proceeding, or hearing under this chapter. 1008 (2) This section also applies to discriminatory housing practices because of race, color, 1009 religion, sex, national origin, familial status, source of income, [or] disability, sexual Enrolled Copy S.B. 296 - 37 - 1010 orientation, or gender identity based upon a person's association with another person. 1011 Section 18. Section 57-21-12 is amended to read: 1012 57-21-12. Other rights of action. 1013 (1) In addition to the procedure outlined in Subsection 57-21-9(1), a person aggrieved 1014 by a discriminatory housing practice may commence a private civil action in a court of 1015 competent jurisdiction within two years after an alleged discriminatory housing practice 1016 occurred, within two years after the termination of an alleged discriminatory housing practice, 1017 or within two years after a breach of a conciliation agreement. The division shall inform the 1018 aggrieved person in writing about this option within 30 days after the aggrieved person files a 1019 complaint under Section 57-21-9. 1020 (2) (a) Except as provided in Subsection (2)(b), the computation of this two-year time 1021 period does not include any time during which an administrative proceeding under this chapter 1022 was pending with respect to a complaint filed under this chapter. 1023 (b) The tolling of the two-year time period does not apply to actions arising from a 1024 breach of a conciliation agreement. 1025 (3) An aggrieved person may commence a private civil action even though a complaint 1026 has been filed with the division, in which case the division is barred from continuing or 1027 commencing any adjudicative proceeding in connection with the same claims under this 1028 chapter after: 1029 (a) the beginning of a civil action brought by a complainant or aggrieved person; or 1030 (b) the parties have reached an agreement in settlement of claims arising from the 1031 complaint. 1032 (4) An aggrieved person may not file a private civil action under this section if: 1033 (a) the division has obtained a conciliation agreement, except for the purpose of 1034 enforcing the terms of the conciliation agreement; or 1035 (b) a formal adjudicative hearing has been commenced under Section 57-21-10 1036 regarding the same complaint. 1037 (5) Upon written application by a person alleging a discriminatory housing practice S.B. 296 Enrolled Copy - 38 - 1038 prohibited under this chapter in a private civil action, or by a person against whom the 1039 violations are alleged, the court may: 1040 (a) appoint an attorney for the applicant; and 1041 (b) authorize the commencement or continuation of a private civil action without the 1042 payment of fees, costs, or security if, in the opinion of the court, the applicant is financially 1043 unable to bear the costs of the civil action. 1044 (6) Upon timely application, the division may intervene in a private civil action 1045 brought under this subsection if the division certifies that the case is of general importance. 1046 (7) In a private civil action, if the court finds that a discriminatory housing practice has 1047 occurred or is about to occur, the court may: 1048 (a) order the respondent to cease any discriminatory housing practice; 1049 (b) award to the plaintiff actual damages, punitive damages, and reasonable [attorneys'] 1050 attorney fees and costs; and 1051 (c) grant, as the court considers appropriate, any permanent or temporary injunction, 1052 temporary restraining order, or other order as may be appropriate, including civil penalties 1053 under Section 57-21-11. 1054 (8) This chapter does not preclude any private right of action by an aggrieved person 1055 based on otherwise applicable law not included in this chapter. 1056 Section 19. Revisor instructions. 1057 The Legislature intends that the Office of Legislative Research and General Counsel, in 1058 preparing the Utah Code database for publication, modify the language in Sections 1059 34A-5-102.7 and 57-21-2.7 from "this bill" to the bill's designated chapter number in the Laws 1060 of Utah.