H.B. 89

1

ANTIDISCRIMINATION ACT AMENDMENTS
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Christine A. Johnson
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Utah Antidiscrimination Act to address discrimination on the
10 basis of sexual orientation or gender identity.
11 Highlighted Provisions:
12 This bill:
13 . defines "gender identity" and "sexual orientation";
14 . includes sexual orientation and gender identity as a prohibited basis for
15 discrimination in employment in a manner consistent with the Utah
16 Antidiscrimination Act;
17 . addresses advertisements;
18 . prohibits quotas or preferences on the basis of sexual orientation or gender identity;
19 and
20 . makes technical and conforming amendments.
21 Monies Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 None
25 Utah Code Sections Affected:
26 AMENDS:
27 34A-5-102, as last amended by Laws of Utah 2001, Chapter 73

28 34A-5-104, as last amended by Laws of Utah 1999, Chapter 161
29 34A-5-105, as last amended by Laws of Utah 2003, Chapter 65
30 34A-5-106, as last amended by Laws of Utah 2003, Chapter 65
31 34A-5-107, as last amended by Laws of Utah 2003, Chapter 65
32 67-19-6.3, as last amended by Laws of Utah 2006, Chapter 139
33
34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 34A-5-102 is amended to read:
36 34A-5-102. Definitions.
37 As used in this chapter:
38 (1) "Apprenticeship" means a program for the training of [apprentices] an apprentice,
39 including a program providing the training of [those persons] a person defined as [apprentices]
40 an apprentice by Section 35A-6-102 .
41 (2) "Bona fide occupational qualification" means a characteristic applying to an
42 employee:
43 (a) that is necessary to the operation of the employee's employer's business; or
44 (b) is the essence of the employee's employer's business.
45 (3) "Court" means:
46 (a) the district court in the judicial district of the state in which the asserted unfair
47 employment practice [occurred] occurs; or
48 (b) if [this court] the district court described in Subsection (3)(a) is not in session at
49 [that] the time the asserted unfair employment practice occurs, a judge of the court described in
50 Subsection (3)(a).
51 (4) "Director" means the director of the division.
52 (5) "Disability" means a physical or mental disability as defined and covered by the
53 Americans with Disabilities Act of 1990, 42 U.S.C. 12102.
54 (6) "Discriminate in matters of compensation" means the payment of differing wages
55 or salaries to employees having substantially equal experience, responsibilities, and skill for a
56 particular job.
57 [(6)] (7) "Division" means the Division of Antidiscrimination and Labor.
58 [(7)] (8) "Employee" means [any] a person applying with or employed by an employer.

59 [(8)] (9) (a) "Employer" means:
60 (i) the state;
61 (ii) [any] a political subdivision;
62 (iii) a board, commission, department, institution, school district, trust, or agent of:
63 (A) the state; or [its]
64 (B) a political [subdivisions] subdivision; or
65 (iv) a person employing 15 or more employees within the state for each working day
66 in each of 20 calendar weeks or more in the current or preceding calendar year.
67 (b) "Employer" does not include:
68 (i) a religious organization or association;
69 (ii) a religious corporation sole; or
70 (iii) [any] a corporation or association constituting a wholly owned subsidiary or
71 agency of [any]:
72 (A) a religious organization or association; or
73 (B) a religious corporation sole.
74 [(9)] (10) "Employment agency" means [any] a person:
75 (a) undertaking to procure [employees or opportunities] an employer or an opportunity
76 to work for [any other] another person; or
77 (b) holding itself out to be equipped to take an action described in Subsection [(9)]
78 (10)(a).
79 (11) "Gender identity" means a person's self-perception, or the perception by another
80 person, of the person's identity as a male or female:
81 (a) on the basis of the person's appearance, behavior, or physical characteristics; and
82 (b) whether or not it is different than the person's:
83 (i) physical anatomy; or
84 (ii) designated sex at birth.
85 [(10)] (12) "Joint apprenticeship committee" means [any] an association of the
86 following that provides, coordinates, or controls an apprentice training program:
87 (a) representatives of a labor organization; and
88 (b) an employer [providing, coordinating, or controlling an apprentice training
89 program].

90 [(11)] (13) "Labor organization" means [any] an organization that exists for the
91 purpose in whole or in part of:
92 (a) collective bargaining;
93 (b) dealing with [employers] an employer concerning:
94 (i) grievances[,]; or
95 (ii) terms or conditions of employment; or
96 (c) other mutual aid or protection in connection with employment.
97 [(12)] (14) "National origin" means the place of birth, domicile, or residence of an
98 individual or of an individual's ancestors.
99 [(13)] (15) "On-the-job-training program" means [any] a program designed to instruct a
100 person who, while learning the particular job for which the person is receiving instruction:
101 (a) is also employed at that job; or
102 (b) may be employed by the employer conducting the program:
103 (i) during the course of the program[,]; or
104 (ii) when the program is completed.
105 [(14)] (16) "Person" means [one or more individuals, partnerships, associations,
106 corporations, legal representatives, trusts or trustees, receivers, the state and all political
107 subdivisions and agencies of the state.]:
108 (a) an individual;
109 (b) a partnership;
110 (c) an association;
111 (d) a corporation;
112 (e) a legal representative;
113 (f) a trust or trustee;
114 (g) a receiver;
115 (h) the state;
116 (i) a political subdivision; and
117 (j) an agency of the state.
118 [(15)] (17) "Presiding officer" [means the same as that term] is as defined in Section
119 63-46b-2 .
120 [(16)] (18) "Prohibited employment practice" means a practice specified as

121 discriminatory, and therefore unlawful, in Section 34A-5-106 .
122 (19) "Religious educational institution" means a school, college, university, or other
123 educational institution that:
124 (a) is, in whole or in substantial part, owned, supported, controlled, or managed by a
125 particular religious corporation, association, or society; or
126 (b) has a curriculum that is directed toward the propagation of a particular religion.
127 [(17)] (20) "Retaliate" means the taking of adverse action:
128 (a) by:
129 (i) an employer[,];
130 (ii) an employment agency[,];
131 (iii) a labor organization[,];
132 (iv) an apprenticeship program[,];
133 (v) an on-the-job training program[,]; or
134 (vi) a vocational school [against one of its employees, applicants, or members];
135 (b) against an employee, applicant, or member of a person described in Subsection
136 (20)(a); and
137 (c) because the employee, applicant, or member described in Subsection (20)(b):
138 [(a) has opposed any] (i) opposes an employment practice prohibited under this
139 chapter; or
140 [(b) filed charges, testified, assisted, or participated]
141 (ii) files charges, testifies, assists, or participates in any way in [any] a proceeding,
142 investigation, or hearing under this chapter.
143 (21) "Sexual orientation" means:
144 (a) a person's:
145 (i) bisexuality;
146 (ii) heterosexuality; or
147 (iii) homosexuality; or
148 (b) that the person is perceived by another person to be:
149 (i) bisexual;
150 (ii) heterosexual; or
151 (iii) homosexual.

152 [(18)] (22) "Vocational school" means [any] a school or institution conducting a course
153 of instruction, training, or retraining to prepare [individuals] an individual to:
154 (a) follow an occupation or trade[,]; or [to]
155 (b) pursue a manual, technical, industrial, business, commercial, office, personal
156 services, or other nonprofessional [occupations] occupation.
157 Section 2. Section 34A-5-104 is amended to read:
158 34A-5-104. Powers.
159 (1) (a) The commission has jurisdiction over the subject of employment practices and
160 discrimination made unlawful by this chapter.
161 (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and
162 for the enforcement of this chapter.
163 (2) The division may:
164 (a) appoint and prescribe the duties of [investigators and other employees and agents
165 that it] an investigator or other employee or agent that the division considers necessary for the
166 enforcement of this chapter;
167 (b) receive, reject, investigate, and pass upon [complaints] a complaint alleging:
168 (i) discrimination in:
169 (A) employment;
170 (B) an apprenticeship [programs] program;
171 (C) an on-the-job training [programs; and] program; or
172 (D) a vocational [schools] school; or
173 (ii) the existence of a discriminatory or prohibited employment practice by:
174 (A) a person;
175 (B) an employer;
176 (C) an employment agency;
177 (D) a labor organization;
178 (E) [the employees or members] an employee or member of an employment agency or
179 labor organization;
180 (F) a joint apprenticeship committee; and
181 (G) a vocational school;
182 (c) investigate and study the existence, character, causes, and extent of discrimination

183 in employment, an apprenticeship [programs,] program, an on-the-job training [programs, and]
184 program, or a vocational [schools] school in this state by one or more of the following:
185 (i) employers;
186 (ii) employment agencies;
187 (iii) labor organizations;
188 (iv) joint apprenticeship committees; and
189 (v) vocational schools;
190 (d) formulate one or more plans for the elimination of discrimination by educational or
191 other means;
192 (e) hold [hearings] a hearing upon a complaint made against:
193 (i) a person;
194 (ii) an employer;
195 (iii) an employment agency;
196 (iv) a labor organization;
197 (v) [the employees or members] an employee or member of an employment agency or
198 labor organization;
199 (vi) a joint apprenticeship committee; or
200 (vii) a vocational school;
201 (f) issue one or more publications [and] or reports of investigations and research that:
202 (i) promote good will among the various racial, religious, and ethnic groups of the
203 state; and
204 (ii) minimize or eliminate discrimination in employment [because] on the basis of race,
205 color, sex, religion, national origin, age, [or] disability, sexual orientation, or gender identity;
206 (g) prepare and transmit to the governor, at least once each year, [reports] a report
207 describing:
208 (i) [its] the division's proceedings, investigations, and hearings;
209 (ii) the outcome of [those hearings] a hearing described in Subsection (2)(g)(i);
210 (iii) decisions the division [has rendered] renders; and
211 (iv) the other work performed by the division;
212 (h) recommend one or more policies to the governor, and submit [recommendation]
213 one or more recommendations to employers, employment agencies, and labor organizations to

214 implement those policies;
215 (i) recommend [any] legislation concerning discrimination [because] on the basis of
216 race, sex, color, national origin, religion, age, [or] disability, sexual orientation, or gender
217 identity to the governor that [it] the division considers necessary; and
218 (j) within the limits of [any] appropriations made for [its] the division's operation,
219 cooperate with other agencies or organizations, both public and private, in the planning and
220 conducting of educational programs designed to eliminate discriminatory practices prohibited
221 under this chapter.
222 (3) The division shall investigate an alleged discriminatory [practices] practice
223 involving [officers or employees] an officer or employee of state government if requested to do
224 so by the Career Service Review Board.
225 (4) (a) In [any] a hearing held under this chapter, the division may:
226 (i) subpoena [witnesses] a witness and compel [their] the witness' attendance at the
227 hearing;
228 (ii) administer [oaths] an oath and take the testimony of [any] a person under oath; and
229 (iii) compel [any] a person to produce for examination [any books, papers,] a book,
230 paper, or other information relating to the matters raised by the complaint.
231 (b) The division director or a hearing examiner appointed by the division director may
232 conduct [hearings] a hearing.
233 (c) If a witness fails or refuses to obey a subpoena issued by the division, the division
234 may petition the district court to enforce the subpoena.
235 (d) [In the event] If a witness asserts a privilege against self-incrimination, testimony
236 and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of
237 Immunity.
238 Section 3. Section 34A-5-105 is amended to read:
239 34A-5-105. Antidiscrimination and Labor Advisory Council -- Membership --
240 Appointment -- Term -- Powers and duties -- Chair.
241 (1) There is created in the commission an Antidiscrimination and Labor Advisory
242 Council consisting of:
243 (a) 13 voting members appointed by the commissioner as follows:
244 (i) three employer representatives;

245 (ii) three employee representatives;
246 (iii) two representatives of persons who seek to rent or purchase dwellings as defined
247 in Section 57-21-2 ;
248 (iv) two representatives of persons who:
249 (A) sell or rent dwellings; and
250 (B) are subject to Title 57, Chapter 21, Utah Fair Housing Act; and
251 (v) three representatives of the general public; and
252 (b) the commissioner or the commissioner's designee as a nonvoting member of the
253 council.
254 (2) In making [the appointments] an appointment under Subsection (1), the
255 commissioner shall consider representation of the following [protected] covered classes:
256 (a) race;
257 (b) color;
258 (c) national origin;
259 (d) [gender] sex;
260 (e) religion;
261 (f) age;
262 (g) persons with disabilities;
263 (h) sexual orientation;
264 (i) gender identity;
265 [(h)] (j) familial status as defined in Section 57-21-2 ; and
266 [(i)] (k) source of income as defined in Section 57-21-2 .
267 (3) The division shall provide [any] necessary staff support for the council.
268 (4) (a) Except as required by Subsection (4)(b), as [terms of current council members
269 expire] a term of a council member expires, the commissioner shall appoint [each] a new
270 member or reappointed member to a four-year term.
271 (b) Notwithstanding the requirements of Subsection (4)(a), the commissioner shall, at
272 the time of appointment or reappointment, adjust the length of terms to ensure that the terms of
273 council members are staggered so that approximately half of the council is appointed every two
274 years.
275 (5) (a) When a vacancy occurs in the membership for any reason, the commissioner

276 shall appoint a replacement [shall be appointed] for the unexpired term.
277 (b) The commissioner shall terminate the term of a council member who ceases to be
278 representative as designated by the original appointment.
279 (6) (a) (i) [Members] A member who [are] is not a government [employees shall]
280 employee may not receive [no] compensation or benefits for [their] the member's services, but
281 may receive per diem and expenses incurred in the performance of the member's official duties
282 at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
283 (ii) [Members] A member who is not a government employee may decline to receive
284 per diem and expenses for [their] the member's service.
285 (b) (i) [State] A state government officer [and employee members who do] or
286 employee member who does not receive salary, per diem, or expenses from [their] the
287 member's agency for [their] the member's service may receive per diem and expenses incurred
288 in the performance of [their] the member's official duties from the council at the rates
289 established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
290 (ii) [State] A state government officer [and] or employee [members] member may
291 decline to receive per diem and expenses for [their] the member's service.
292 (7) (a) The advisory council shall:
293 (i) offer advice on issues requested by:
294 (A) the commission;
295 (B) the division; or
296 (C) the Legislature; and
297 (ii) make recommendations to the commission and division regarding issues related to:
298 (A) employment discrimination;
299 (B) housing discrimination; and
300 (C) the administration by the commission of:
301 (I) the provisions of Title 34, Labor in General, that are administered by the
302 commission;
303 (II) Title 34A, Chapter 5, Utah Antidiscrimination Act; and
304 (III) Title 57, Chapter 21, Utah Fair Housing Act.
305 (b) The council shall [confer] meet at least quarterly for the purpose of advising the
306 commission, division, and the Legislature regarding issues described in Subsection (7)(a).

307 (8) (a) The commissioner or the commissioner's designee shall serve as chair of the
308 council.
309 (b) The chair [is charged with the responsibility of calling the necessary meetings] shall
310 call a necessary meeting.
311 Section 4. Section 34A-5-106 is amended to read:
312 34A-5-106. Discriminatory or prohibited employment practices -- Permitted
313 practices.
314 (1) It is a discriminatory or prohibited employment practice to take [any] an action
315 described in Subsections (1)(a) through (f).
316 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate
317 [any] a person, or to retaliate against, harass, or discriminate in matters of compensation or in
318 [terms, privileges, and conditions] a term, privilege, or condition of employment against [any]
319 a person otherwise qualified, [because] on the basis of:
320 (A) race;
321 (B) color;
322 (C) sex;
323 (D) pregnancy, childbirth, or pregnancy-related conditions;
324 (E) age, if the individual is 40 years of age or older;
325 (F) religion;
326 (G) national origin; [or]
327 (H) disability[.];
328 (I) sexual orientation; or
329 (J) gender identity.
330 (ii) A person may not be considered "otherwise qualified," unless that person possesses
331 the following required by an employer for [any] a particular job, job classification, or position:
332 (A) education;
333 (B) training;
334 (C) ability, with or without reasonable accommodation;
335 (D) moral character;
336 (E) integrity;
337 (F) disposition to work;

338 (G) adherence to reasonable rules and regulations; and
339 (H) other job related qualifications required by an employer.
340 [(iii) (A) As used in this chapter, "to discriminate in matters of compensation" means
341 the payment of differing wages or salaries to employees having substantially equal experience,
342 responsibilities, and skill for the particular job.]
343 [(B)] (iii) Notwithstanding Subsection [(1)(a)(iii)(A)] 34A-5-102 (6):
344 (I) nothing in this chapter prevents [increases] an increase in pay as a result of
345 longevity with the employer, if the salary [increases are] increase is uniformly applied and
346 available to all employees on a substantially proportional basis; and
347 (II) nothing in this section prohibits an employer and employee from agreeing to a rate
348 of pay or work schedule designed to protect the employee from loss of a Social Security
349 payment or [benefits] benefit if the employee is eligible for [those payments] the payment or
350 benefit.
351 (b) An employment agency may not:
352 (i) refuse to list and properly classify for employment, or refuse to refer an individual
353 for employment, in a known available job for which the individual is otherwise qualified,
354 [because] on the basis of:
355 (A) race;
356 (B) color;
357 (C) sex;
358 (D) pregnancy, childbirth, or pregnancy-related conditions;
359 (E) religion;
360 (F) national origin;
361 (G) age, if the individual is 40 years of age or older; [or]
362 (H) disability; [or]
363 (I) sexual orientation; or
364 (J) gender identity; or
365 (ii) comply with a request from an employer for referral of [applicants] an applicant for
366 employment if the request indicates either directly or indirectly that the employer discriminates
367 in employment on account of:
368 (A) race;

369 (B) color;
370 (C) sex;
371 (D) pregnancy, childbirth, or pregnancy-related conditions;
372 (E) religion;
373 (F) national origin;
374 (G) age, if the individual is 40 years of age or older; [or]
375 (H) disability[.];
376 (I) sexual orientation; or
377 (J) gender identity.
378 (c) (i) A labor organization may not for a reason listed in Subsection (1)(c)(ii):
379 (A) exclude [any] an individual otherwise qualified from full membership rights in the
380 labor organization[,];
381 (B) expel [the] an individual from membership in the labor organization[,]; or
382 (C) otherwise discriminate against or harass [any] a member of the labor
383 [organization's members] organization in full employment of work opportunity, or
384 representation[, because of:].
385 (ii) An action described in Subsection (1)(c)(i) is prohibited if it is taken on the basis