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8 LONG TITLE
9 General Description:
10 This bill modifies the Utah Antidiscrimination Act and Utah Fair Housing Act to
11 address discrimination, including discrimination on the basis of sexual orientation,
12 gender identity, or political speech or activity as it relates to employment.
13 Highlighted Provisions:
14 This bill:
15 . modifies definition provisions related to employment and housing discrimination,
16 including defining "gender identity" and "sexual orientation";
17 . defines "political speech or activity" for purposes of employment;
18 . includes sexual orientation and gender identity as a consideration in appointments to
19 the Antidiscrimination and Labor Advisory Council;
20 . includes sexual orientation and gender identity as a prohibited basis for
21 discrimination in employment;
22 . prohibits political speech or activity as a basis for discrimination in employment;
23 . modifies exemptions to the Utah Fair Housing Act;
24 . includes sexual orientation and gender identity as a prohibited basis for
25 discriminatory housing practices; and
26 . makes technical and conforming amendments.
27 Money Appropriated in this Bill:
29 Other Special Clauses:
31 Utah Code Sections Affected:
33 34A-5-102, as last amended by Laws of Utah 2011, Chapter 413
34 34A-5-104, as last amended by Laws of Utah 1999, Chapter 161
35 34A-5-105, as last amended by Laws of Utah 2010, Chapter 286
36 34A-5-106, as last amended by Laws of Utah 2003, Chapter 65
37 34A-5-107, as last amended by Laws of Utah 2008, Chapter 382
38 57-21-2, as last amended by Laws of Utah 2010, Chapter 379
39 57-21-3, as last amended by Laws of Utah 1993, Chapter 114
40 57-21-5, as last amended by Laws of Utah 2011, Chapter 366
41 57-21-6, as last amended by Laws of Utah 1993, Chapter 114
42 57-21-7, as last amended by Laws of Utah 1993, Chapter 114
44 Be it enacted by the Legislature of the state of Utah:
45 Section 1. Section 34A-5-102 is amended to read:
46 34A-5-102. Definitions -- Unincorporated entities.
47 (1) As used in this chapter:
48 (a) "Apprenticeship" means a program for the training of apprentices including a
49 program providing the training of those persons defined as apprentices by Section 35A-6-102 .
50 (b) "Bona fide occupational qualification" means a characteristic applying to an
51 employee that:
52 (i) is necessary to the operation of the employee's employer's business; or
53 (ii) is the essence of the employee's employer's business.
54 (c) "Court" means:
55 (i) the district court in the judicial district of the state in which the asserted unfair
56 employment practice [
57 (ii) if [
58 in Subsection (1)(c)(i).
59 (d) "Director" means the director of the division.
60 (e) "Disability" means a physical or mental disability as defined and covered by the
61 Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102.
62 (f) "Division" means the Division of Antidiscrimination and Labor.
63 (g) "Employee" means [
64 (h) (i) "Employer" means:
65 (A) the state;
66 (B) [
67 (C) a board, commission, department, institution, school district, trust, or agent of the
68 state or [
69 (D) a person employing 15 or more employees within the state for each working day in
70 each of 20 calendar weeks or more in the current or preceding calendar year.
71 (ii) "Employer" does not include:
72 (A) a religious organization or association;
73 (B) a religious corporation sole; [
74 (C) [
75 agency of any religious organization or association or religious corporation sole[
76 (D) an expressive association if employing an individual would significantly burden
77 the expressive association's rights of expressive association under decisions of the United
78 States Supreme Court.
79 (i) "Employment agency" means [
80 (i) undertaking to procure employees or opportunities to work for any other person; or
81 (ii) holding the person out to be equipped to take an action described in Subsection
83 (j) "Gender identity" means an individual's actual or perceived sense of being male,
84 female, or transgendered, without regard to the person's physiology. Evidence of an
85 individual's gender identity includes the individual's gender-related appearance, mannerisms,
86 and other gender-related characteristics.
88 of a labor organization and an employer providing, coordinating, or controlling an apprentice
89 training program.
91 whole or in part of:
92 (i) collective bargaining;
93 (ii) dealing with employers concerning grievances, terms or conditions of employment;
95 (iii) other mutual aid or protection in connection with employment.
97 individual or of an individual's ancestors.
99 person who, while learning the particular job for which the person is receiving instruction:
100 (i) is also employed at that job; or
101 (ii) may be employed by the employer conducting the program during the course of the
102 program, or when the program is completed.
104 (i) one or more individuals, partnerships, associations, corporations, legal
105 representatives, trusts or trustees, receivers[
106 (ii) the state; and [
107 (iii) a political subdivision or agency of the state.
108 (p) (i) "Political speech or activity" means an individual's lawful speech or activity
109 regarding issues of public concern protected by the First Amendment or Utah Constitution,
110 Article I, Sections 1 and 15.
111 (ii) "Political speech or activity" includes an individual's opinion manifested in speech
112 or association, concerning the social, economic, and governmental structure of society and its
115 63G-4-103 .
117 discriminatory, and therefore unlawful, in Section 34A-5-106 .
119 agency, labor organization, apprenticeship program, on-the-job training program, or vocational
120 school against one of its employees, applicants, or members because the employee, applicant,
121 or member [
122 (i) [
123 (ii) [
124 participates in any way in [
125 (t) "Sexual orientation" means an individual's actual or perceived orientation as
126 heterosexual, homosexual, or bisexual.
128 state that is not:
129 (i) an individual;
130 (ii) a corporation; or
131 (iii) publicly traded.
133 instruction, training, or retraining to prepare individuals to follow an occupation or trade, or to
134 pursue a manual, technical, industrial, business, commercial, office, personal services, or other
135 nonprofessional occupations.
136 (2) (a) For purposes of this chapter, an unincorporated entity that is required to be
137 licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to
138 be the employer of each individual who, directly or indirectly, holds an ownership interest in
139 the unincorporated entity.
140 (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3,
141 Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption
142 under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that
143 the individual:
144 (i) is an active manager of the unincorporated entity;
145 (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated
146 entity; or
147 (iii) is not subject to supervision or control in the performance of work by:
148 (A) the unincorporated entity; or
149 (B) a person with whom the unincorporated entity contracts.
150 (c) As part of the rules made under Subsection (2)(b), the commission may define:
151 (i) "active manager";
152 (ii) "directly or indirectly holds at least an 8% ownership interest"; and
153 (iii) "subject to supervision or control in the performance of work."
154 Section 2. Section 34A-5-104 is amended to read:
155 34A-5-104. Powers.
156 (1) (a) The commission has jurisdiction over the subject of employment practices and
157 discrimination made unlawful by this chapter.
158 (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and
159 for the enforcement of this chapter.
160 (2) The division may:
161 (a) appoint and prescribe the duties of [
163 considers necessary for the enforcement of this chapter;
164 (b) receive, reject, investigate, and pass upon [
165 (i) discrimination in:
166 (A) employment;
167 (B) an apprenticeship [
168 (C) an on-the-job training [
169 (D) a vocational [
170 (ii) the existence of a discriminatory or prohibited employment practice by:
171 (A) a person;
172 (B) an employer;
173 (C) an employment agency;
174 (D) a labor organization;
175 (E) [
176 labor organization;
177 (F) a joint apprenticeship committee; and
178 (G) a vocational school;
179 (c) investigate and study the existence, character, causes, and extent of discrimination
181 (i) in one or more of the following in this state:
182 (A) employment[
183 (B) apprenticeship programs[
184 (C) on-the-job training programs[
185 (D) vocational schools [
186 (ii) by:
192 (d) formulate one or more plans for the elimination of discrimination by educational or
193 other means;
194 (e) hold [
195 (i) a person;
196 (ii) an employer;
197 (iii) an employment agency;
198 (iv) a labor organization;
199 (v) [
200 labor organization;
201 (vi) a joint apprenticeship committee; or
202 (vii) a vocational school;
203 (f) issue one or more publications and reports of investigations and research that:
204 (i) promote good will among the various racial, religious, and ethnic groups of the
205 state; and
206 (ii) minimize or eliminate discrimination in employment because of race, color, sex,
207 religion, national origin, age, [
208 (g) prepare and transmit to the governor, at least once each year, reports describing:
209 (i) [
210 (ii) the outcome of those hearings;
211 (iii) decisions the division [
212 (iv) the other work performed by the division;
213 (h) recommend policies to the governor, and submit recommendation to employers,
214 employment agencies, and labor organizations to implement those policies;
215 (i) recommend [
216 concerning discrimination because of:
217 (A) race[
218 (B) sex[
219 (C) color[
220 (D) national origin[
221 (E) religion[
222 (F) age[
223 (G) disability [
224 (H) sexual orientation; or
225 (I) gender identity; and
226 (j) within the limits of [
227 agencies or organizations, both public and private, in the planning and conducting of
228 educational programs designed to eliminate discriminatory practices prohibited under this
230 (3) The division shall investigate an alleged discriminatory [
231 involving [
232 so by the Career Service Review Board.
233 (4) (a) In [
234 (i) subpoena witnesses and compel their attendance at the hearing;
235 (ii) administer oaths and take the testimony of [
236 (iii) compel [
237 paper, or other information relating to the matters raised by the complaint.
238 (b) The division director or a hearing examiner appointed by the division director may
239 conduct [
240 (c) If a witness fails or refuses to obey a subpoena issued by the division, the division
241 may petition the district court to enforce the subpoena.
242 (d) [
243 and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of
245 Section 3. Section 34A-5-105 is amended to read:
246 34A-5-105. Antidiscrimination and Labor Advisory Council -- Membership --
247 Appointment -- Term -- Powers and duties -- Chair.
248 (1) There is created an Antidiscrimination and Labor Advisory Council consisting of:
249 (a) 13 voting members appointed by the commissioner as follows:
250 (i) three employer representatives;
251 (ii) three employee representatives;
252 (iii) two representatives of persons who seek to rent or purchase [
253 dwelling, as defined in Section 57-21-2 ;
254 (iv) two representatives of persons who:
255 (A) sell or rent dwellings; and
256 (B) are subject to Title 57, Chapter 21, Utah Fair Housing Act; and
257 (v) three representatives of the general public; and
258 (b) the commissioner or the commissioner's designee as a nonvoting member of the
260 (2) In making [
261 commissioner shall consider representation of the following protected classes:
262 (a) race;
263 (b) color;
264 (c) national origin;
265 (d) [
266 (e) religion;
267 (f) age;
268 (g) persons with disabilities;
269 (h) sexual orientation;
270 (i) gender identity;
273 (3) The division shall provide any necessary staff support for the council.
274 (4) (a) Except as required by Subsection (4)(b), as terms of current council members
275 expire, the commissioner shall appoint each new member or reappointed member to a four-year
277 (b) Notwithstanding the requirements of Subsection (4)(a), the commissioner shall, at
278 the time of appointment or reappointment, adjust the length of terms to ensure that the terms of
279 council members are staggered so that approximately half of the council is appointed every two
281 (5) (a) When a vacancy occurs in the membership for any reason, the commissioner
282 shall appoint a replacement [
283 (b) The commissioner shall terminate the term of a council member who ceases to be
284 representative as designated by the original appointment.
285 (6) A member may not receive compensation or benefits for the member's service, but
286 may receive per diem and travel expenses in accordance with:
287 (a) Section 63A-3-106 ;
288 (b) Section 63A-3-107 ; and
289 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
290 63A-3-107 .
291 (7) (a) The advisory council shall:
292 (i) offer advice on issues requested by:
293 (A) the commission;
294 (B) the division; or
295 (C) the Legislature; and
296 (ii) make recommendations to the commission and division regarding issues related to:
297 (A) employment discrimination;
298 (B) housing discrimination; and
299 (C) the administration by the commission of:
300 (I) the provisions of Title 34, Labor in General, that are administered by the
302 (II) [
303 (III) Title 57, Chapter 21, Utah Fair Housing Act.
304 (b) The council shall [
305 commission, division, and the Legislature regarding issues described in Subsection (7)(a).
306 (8) (a) The commissioner or the commissioner's designee shall serve as chair of the
308 (b) The chair [
310 Section 4. Section 34A-5-106 is amended to read:
311 34A-5-106. Discriminatory or prohibited employment practices -- Permitted
313 (1) It is a discriminatory or prohibited employment practice to take [
314 described in Subsections (1)(a) through [
315 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate
317 terms, privileges, and conditions of employment against [
318 because of:
319 (A) race;
320 (B) color;
321 (C) sex;
322 (D) pregnancy, childbirth, or pregnancy-related conditions;
323 (E) age, if the individual is 40 years of age or older;
324 (F) religion;
325 (G) national origin; [
326 (H) disability[
327 (I) sexual orientation; or
328 (J) gender identity.
329 (ii) A person may not be considered "otherwise qualified," unless that person possesses
330 the following required by an employer for any particular job, job classification, or position:
331 (A) education;
332 (B) training;
333 (C) ability, with or without reasonable accommodation;
334 (D) moral character;
335 (E) integrity;
336 (F) disposition to work;
337 (G) adherence to reasonable rules and regulations; and
338 (H) other job related qualifications required by an employer.
339 (iii) [
340 the payment of differing wages or salaries to employees having substantially equal experience,
341 responsibilities, and skill for the particular job.
344 longevity with the employer, if the salary [
345 available to all employees on a substantially proportional basis; and
347 a rate of pay or work schedule designed to protect the employee from loss of Social Security
348 payment or benefits if the employee is eligible for those payments.
349 (b) An employment agency may not:
350 (i) refuse to list and properly classify for employment, or refuse to refer an individual
351 for employment, in a known available job for which the individual is otherwise qualified,
352 because of:
353 (A) race;
354 (B) color;
355 (C) sex;
356 (D) pregnancy, childbirth, or pregnancy-related conditions;
357 (E) religion;
358 (F) national origin;
359 (G) age, if the individual is 40 years of age or older; [
360 (H) disability; [
361 (I) sexual orientation; or
362 (J) gender identity; or
363 (ii) comply with a request from an employer for referral of [
364 employment if the request indicates either directly or indirectly that the employer discriminates
365 in employment on account of:
366 (A) race;
367 (B) color;
368 (C) sex;
369 (D) pregnancy, childbirth, or pregnancy-related conditions;
370 (E) religion;
371 (F) national origin;
372 (G) age, if the individual is 40 years of age or older; [
373 (H) disability[
374 (I) sexual orientation; or
375 (J) gender identity.
376 (c) (i) A labor organization may not for a reason listed in Subsection (1)(c)(ii):
377 (A) exclude [
378 labor organization[
379 (B) expel the individual from membership in the labor organization[
380 (C) otherwise discriminate against or harass [
383 (ii) A labor organization may not take an action listed in this Subsection (1)(c) because
392 (H) sexual orientation; or
393 (I) gender identity.
394 (d) (i) Unless based upon a bona fide occupational qualification, or required by and
395 given to an agency of government for a security [
396 agency, or labor organization may not do the following if the statement, advertisement,
397 publication, form, or inquiry violates Subsection (1)(d)(ii):
398 (A) print, [
399 advertisement, or publication[
400 (B) use [
401 (C) make [
402 (ii) This Subsection (1)(d) applies to a statement, advertisement, publication, form, or
403 inquiry that expresses, either directly or indirectly[
404 discrimination, or the intent to make a limitation, specification, or discrimination as to:
405 (A) race;
406 (B) color;
407 (C) religion;
408 (D) sex;
409 (E) pregnancy, childbirth, or pregnancy-related conditions;
410 (F) national origin;
411 (G) age, if the individual is 40 years of age or older; [
412 (H) disability;
413 (I) sexual orientation; or
414 (J) gender identity.
417 (e) A person, whether or not an employer, an employment agency, a labor organization,
418 or [
419 or labor organization, may not:
420 (i) aid, incite, compel, or coerce the doing of an act defined in this section to be a
421 discriminatory or prohibited employment practice;
422 (ii) obstruct or prevent [
423 order issued under this chapter; or
424 (iii) attempt, either directly or indirectly, to commit [
426 (f) (i) An employer, labor organization, joint apprenticeship committee, or vocational
427 school, providing, coordinating, or controlling an apprenticeship [
428 providing, coordinating, or controlling an on-the-job-training [
429 training, or retraining [
430 (A) deny to, or withhold from, [
431 participate in [
432 occupational instruction, training, or retraining program because of:
433 (I) race;
434 (II) color;
435 (III) sex;
436 (IV) pregnancy, childbirth, or pregnancy-related conditions;
437 (V) religion;
438 (VI) national origin;
439 (VII) age, if the individual is 40 years of age or older; [
440 (VIII) disability;
441 (IX) sexual orientation; or
442 (X) gender identity;
443 (B) discriminate against or harass [
445 (I) race;
446 (II) color;
447 (III) sex;
448 (IV) pregnancy, childbirth, or pregnancy-related conditions;
449 (V) religion;
450 (VI) national origin;
451 (VII) age, if the individual is 40 years of age or older;
452 (VIII) disability;
453 (IX) sexual orientation; or
454 (X) gender identity;
455 (C) discriminate against [
456 of [
457 (I) race;
458 (II) color;
459 (III) sex;
460 (IV) pregnancy, childbirth, or pregnancy-related conditions;
461 (V) religion;
462 (VI) national origin;
463 (VII) age, if the individual is 40 years of age or older; [
464 (VIII) disability; [
465 (IX) sexual orientation; or
466 (X) gender identity; or
468 printed or published, [
469 or membership in or [
470 or relating to [
471 indicating [
472 (I) race;
473 (II) color;
474 (III) sex;
475 (IV) pregnancy, childbirth, or pregnancy-related conditions;
476 (V) religion;
477 (VI) national origin;
478 (VII) age, if the individual is 40 years of age or older; [
479 (VIII) disability[
480 (IX) sexual orientation; or
481 (X) gender identity.
482 (ii) Notwithstanding Subsection (1)(f)(i)[
483 occupational qualification for employment, a notice or advertisement described in Subsection
486 (A) race;
487 (B) color;
488 (C) religion;
489 (D) sex;
490 (E) pregnancy, childbirth, or pregnancy-related conditions;
491 (F) age;
492 (G) national origin; [
493 (H) disability[
494 (I) sexual orientation; or
495 (J) gender identity.
496 (g) Subject to Subsection (7), an employer may not discriminate against an employee
497 or applicant for employment because of the employee's or applicant's political speech or
498 activity that occurs off the employer's premises and during nonworking hours.
499 (2) [
500 construed to prevent:
501 (a) the termination of employment of an individual who, with or without reasonable
502 accommodation, is physically, mentally, or emotionally unable to perform the duties required
503 by that individual's employment;
504 (b) the variance of insurance premiums or coverage on account of age; or
505 (c) a restriction on the activities of [
507 Act, with respect to an individual who is under 21 years of age.
508 (3) (a) It is not a discriminatory or prohibited employment practice:
509 (i) for an employer to hire and employ [
510 agency to classify or refer for employment [
511 classify its membership or to classify or refer for employment [
512 employer, labor organization, or joint labor-management committee controlling an
513 apprenticeship or other training or retraining [
514 individual in [
515 pregnancy-related conditions, age, national origin, [
516 identity in those certain instances [
517 pregnancy-related conditions, age, if the individual is 40 years of age or older, national origin,
519 reasonably necessary to the normal operation of that particular business or enterprise;
520 (ii) for a school, college, university, or other educational institution to hire and employ
522 (A) the school, college, university, or other educational institution is, in whole or in
523 substantial part, owned, supported, controlled, or managed by a particular religious corporation,
524 association, or society; or
525 (B) the curriculum of the school, college, university, or other educational institution is
526 directed toward the propagation of a particular religion; or
527 (iii) for an employer to give preference in employment to:
528 (A) the employer's:
529 (I) spouse;
530 (II) child; or
531 (III) son-in-law or daughter-in-law;
532 (B) [
533 support if [
534 (C) [
536 the employer was or is legally obligated to furnish support; or
537 (D) [
538 employer for a period of two years or more.
539 (b) Nothing in this chapter applies to [
540 reservation with respect to [
541 enterprise under which preferential treatment is given to [
542 individual is a native American Indian living on or near an Indian reservation.
543 (c) Nothing in this chapter [
544 employment agency, labor organization, vocational school, joint labor-management committee,
545 or apprenticeship program subject to this chapter to grant preferential treatment to [
546 individual or to [
547 disability, sexual orientation, or gender identity of the individual or group on account of an
548 imbalance [
550 gender identity employed by [
551 employment agency or labor organization, admitted to membership or classified by [
552 labor organization, or admitted to or employed in, any apprenticeship or other training
553 program, in comparison with the total number or percentage of persons of that race, color,
554 religion, sex, age, national origin, [
555 community or county or in the available work force in any community or county.
556 (4) It is not a discriminatory or prohibited practice with respect to age to observe the
557 terms of a bona fide seniority system or any bona fide employment benefit plan such as a
558 retirement, pension, or insurance plan that is not a subterfuge to evade the purposes of this
559 chapter, except that [
560 hire an individual.
561 (5) Notwithstanding Subsection (4), or [
562 the contrary, a person may not be subject to involuntary termination or retirement from
563 employment on the basis of age alone, if the individual is 40 years of age or older, except:
564 (a) under Subsection (6);
565 (b) under Section 67-5-8 ; and
566 (c) when age is a bona fide occupational qualification.
567 (6) Nothing in this section prohibits compulsory retirement of an employee who has
568 attained at least 65 years of age, and who, for the two-year period immediately before
569 retirement, is employed in a bona fide executive or a high policymaking position, if:
570 (a) that employee is entitled to an immediate nonforfeitable annual retirement benefit
571 from the employee's employer's pension, profit-sharing, savings, or deferred compensation
572 plan, or any combination of those plans; and
573 (b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000.
574 (7) (a) Subsection (1)(g) does not protect an employee or applicant who engages in
575 political speech or activity that creates a material conflict of interest with:
576 (i) a private employer's business related interests; or
577 (ii) a government employer's government interests.
578 (b) Subsection (1)(g) does not protect an employee who engages in political speech or
579 activity that the employee is prohibited from engaging in under state or federal law.
580 (c) Subsection (1)(g) does not protect an employee or applicant who engages in
581 political speech or activity if political neutrality is a bona fide occupational qualification.
582 Section 5. Section 34A-5-107 is amended to read:
583 34A-5-107. Procedure for aggrieved person to file claim -- Investigations --
584 Adjudicative proceedings -- Conciliation -- Reconsideration -- Determination.
585 (1) (a) [
586 employment practice may, or that person's attorney or agent may, make, sign, and file with the
587 division a request for agency action.
588 (b) [
589 (c) A request for agency action made under this section shall be filed within 180 days
590 after the alleged discriminatory or prohibited employment practice [
591 (d) The division may transfer a request for agency action filed with the division
592 pursuant to this section to the federal Equal Employment Opportunity Commission in
593 accordance with [
594 (i) between the division and the Equal Employment Opportunity Commission; and
595 (ii) in effect on the day on which the request for agency action is transferred.
596 (2) [
597 vocational school who has an employee or member who refuses or threatens to refuse to
598 comply with this chapter may file with the division a request for agency action asking the
599 division for assistance to obtain the employee's or member's compliance by conciliation or
600 other remedial action.
601 (3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the
602 division shall promptly assign an investigator to attempt a settlement between the parties by
603 conference, conciliation, or persuasion.
604 (b) If no settlement is reached, the investigator shall make a prompt impartial
605 investigation of all allegations made in the request for agency action.
606 (c) The division and its staff, agents, and employees:
607 (i) shall conduct every investigation in fairness to all parties and agencies involved;
609 (ii) may not attempt a settlement between the parties if it is clear that no discriminatory
610 or prohibited employment practice has occurred.
611 (d) An aggrieved party may withdraw the request for agency action prior to the
612 issuance of a final order.
613 (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator
614 uncovers insufficient evidence during the investigation to support the allegations of a
615 discriminatory or prohibited employment practice set out in the request for agency action, the
616 investigator shall formally report these findings to the director or the director's designee.
617 (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director
618 or the director's designee may issue a determination and order for dismissal of the adjudicative
620 (c) A party may make a written request to the Division of Adjudication for an
621 evidentiary hearing to review de novo the director's or the director's designee's determination
622 and order within 30 days of the date the determination and order for dismissal is issued.
623 (d) If the director or the director's designee receives no timely request for a hearing, the
624 determination and order issued by the director or the director's designee becomes the final order
625 of the commission.
626 (5) (a) If the initial attempts at settlement are unsuccessful and the investigator
627 uncovers sufficient evidence during the investigation to support the allegations of a
628 discriminatory or prohibited employment practice set out in the request for agency action, the
629 investigator shall formally report these findings to the director or the director's designee.
630 (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the
631 director or the director's designee may issue a determination and order based on the
632 investigator's report.
633 (ii) A determination and order issued under this Subsection (5)(b) shall:
634 (A) direct the respondent to cease any discriminatory or prohibited employment
635 practice; and
636 (B) provide relief to the aggrieved party as the director or the director's designee
637 determines is appropriate.
638 (c) A party may file a written request to the Division of Adjudication for an evidentiary
639 hearing to review de novo the director's or the director's designee's determination and order
640 within 30 days of the date the determination and order is issued.
641 (d) If the director or the director's designee receives no timely request for a hearing, the
642 determination and order issued by the director or the director's designee in accordance with
643 Subsection (5)(b) becomes the final order of the commission.
644 (6) In [
645 designee's determination that a prohibited employment practice has occurred, the division shall
646 present the factual and legal basis of the determination or order issued under Subsection (5).
647 (7) (a) [
648 (i) the party filing the request for agency action may reasonably and fairly amend any
649 allegation; and
650 (ii) the respondent may amend its answer.
651 (b) An amendment permitted under this Subsection (7) may be made:
652 (i) during or after a hearing; and
653 (ii) only with permission of the presiding officer.
654 (8) (a) If, upon all the evidence at a hearing, the presiding officer finds that a
655 respondent has not engaged in a discriminatory or prohibited employment practice, the
656 presiding officer shall issue an order dismissing the request for agency action containing the
657 allegation of a discriminatory or prohibited employment practice.
658 (b) The presiding officer may order that the respondent be reimbursed by the
659 complaining party for the respondent's [
660 (9) If upon all the evidence at the hearing, the presiding officer finds that a respondent
661 has engaged in a discriminatory or prohibited employment practice, the presiding officer shall
662 issue an order requiring the respondent to:
663 (a) cease [
664 (b) provide relief to the complaining party, including:
665 (i) reinstatement;
666 (ii) back pay and benefits;
667 (iii) [
668 (iv) costs.
669 (10) Conciliation between the parties is to be urged and facilitated at all stages of the
670 adjudicative process.
671 (11) (a) Either party may file with the Division of Adjudication a written request for
672 review before the commissioner or Appeals Board of the order issued by the presiding officer
673 in accordance with:
674 (i) Section 63G-4-301 ; and
675 (ii) Chapter 1, Part 3, Adjudicative Proceedings.
676 (b) If there is no timely request for review, the order issued by the presiding officer
677 becomes the final order of the commission.
678 (12) An order of the commission under Subsection (11)(a) is subject to judicial review
679 as provided in:
680 (a) Section 63G-4-403 ; and
681 (b) Chapter 1, Part 3, Adjudicative Proceedings.
682 (13) The commission [
683 under this chapter in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
685 (14) The commission and its staff may not divulge or make public [
686 gained from [
687 commission except as provided in Subsections (14)(a) through (d).
688 (a) Information used by the director or the director's designee in making [
689 determination may be provided to all interested parties for the purpose of preparation for and
690 participation in proceedings before the commission.
691 (b) General statistical information may be disclosed provided the identities of the
692 individuals or parties are not disclosed.
693 (c) Information may be disclosed for inspection by the attorney general or other legal
694 representatives of the state or the commission.
695 (d) Information may be disclosed for information and reporting requirements of the
696 federal government.
697 (15) The procedures contained in this section are the exclusive remedy under state law
698 for employment discrimination based upon:
699 (a) race;
700 (b) color;
701 (c) sex;
702 (d) retaliation;
703 (e) pregnancy, childbirth, or pregnancy-related conditions;
704 (f) age;
705 (g) religion;
706 (h) national origin; [
707 (i) disability[
708 (j) sexual orientation; or
709 (k) gender identity.
710 (16) (a) The commencement of an action under federal law for relief based upon [
711 an act prohibited by this chapter bars the commencement or continuation of [
712 adjudicative proceeding before the commission in connection with the same [
713 under this chapter.
714 (b) The transfer of a request for agency action to the Equal Employment Opportunity
715 Commission in accordance with Subsection (1)(d) is considered the commencement of an
716 action under federal law for purposes of Subsection (16)(a).
717 (c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair the
718 exclusive remedy provision set forth in Subsection (15).
719 Section 6. Section 57-21-2 is amended to read:
720 57-21-2. Definitions.
721 As used in this chapter:
722 (1) "Aggrieved person" includes [
723 (a) claims to have been injured by a discriminatory housing practice; or
724 (b) believes that the person will be injured by a discriminatory housing practice that is
725 about to occur.
726 (2) "Commission" means the Labor Commission.
727 (3) "Complainant" means an aggrieved person, including the director, who has
728 commenced a complaint with the division.
729 (4) "Conciliation" means the attempted resolution of [
730 complaint of discriminatory housing practices by the investigation of the complaint through
731 informal negotiations involving the complainant, the respondent, and the division.
732 (5) "Conciliation agreement" means a written agreement setting forth the resolution of
733 the issues in conciliation.
734 (6) "Conciliation conference" means the attempted resolution of [
736 involving the complainant, the respondent, and the division. The conciliation conference is not
737 subject to Title 63G, Chapter 4, Administrative Procedures Act.
738 (7) "Covered multifamily [
739 (a) buildings consisting of four or more dwelling units if the buildings have one or
740 more elevators; and
741 (b) ground floor units in other buildings consisting of four or more dwelling units.
742 (8) "Director" means the director of the division or a designee.
743 (9) (a) "Disability" means a physical or mental impairment that substantially limits one
744 or more of a person's major life activities, including a person having a record of such an
745 impairment or being regarded as having such an impairment.
746 (b) "Disability" does not include current illegal use of, or addiction to, any federally
747 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
748 Sec. 802.
749 (10) "Discriminate" includes segregate or separate.
750 (11) "Discriminatory housing practice" means an act that is unlawful under this
752 (12) "Division" means the Division of Antidiscrimination and Labor established under
753 the commission.
754 (13) [
755 (a) a building or structure, or a portion of a building or structure, occupied as, [
756 designed as, or intended for occupancy as, a residence of one or more families[
757 (b) [
758 construction or location of a dwelling as described in Subsection (13)(a).
759 (14) (a) "Familial status" means one or more individuals who have not attained the age
760 of 18 years being domiciled with:
761 (i) a parent or another person having legal custody of the [
762 individuals; or
763 (ii) the designee of the parent or other person having custody, with the written
764 permission of the parent or other person.
765 (b) The protections afforded against discrimination on the basis of familial status [
767 (i) is pregnant;
768 (ii) is in the process of securing legal custody of any individual who has not attained
769 the age of 18 years; or
770 (iii) is a single individual.
771 (15) "Gender identity" means an individual's actual or perceived sense of being male,
772 female, or transgendered, without regard to the person's physiology. Evidence of an
773 individual's gender identity includes the individual's gender-related appearance, mannerisms,
774 and other gender-related characteristics.
778 (a) individuals[
779 (b) corporations[
780 (c) limited liability companies[
781 (d) partnerships[
782 (e) associations[
783 (f) labor organizations[
784 (g) legal representatives[
785 (h) mutual companies[
786 (i) joint-stock companies[
787 (j) trusts[
788 (k) unincorporated organizations[
789 (l) trustees[
790 (m) trustees in cases under the United States Bankruptcy Code[
791 (n) receivers[
792 (o) fiduciaries.
794 63G-4-103 .
796 broker, or a sales agent as those terms are defined in Section 61-2f-102 .
798 discrimination has been initiated.
800 related to pregnancy or childbirth.
801 (22) "Sexual orientation" means an individual's actual or perceived orientation as
802 heterosexual, homosexual, or bisexual.
804 federal, state, or local assistance, including medical assistance, or of being a tenant receiving
805 federal, state, or local subsidies, including rental assistance or rent supplements.
806 Section 7. Section 57-21-3 is amended to read:
807 57-21-3. Exemptions.
808 (1) This chapter does not apply to [
809 its owner if:
810 (a) the owner is not a partnership, association, corporation, or other business entity;
811 (b) the owner does not own [
812 units held for sale or lease at the same time;
813 (c) during a 24-month period, the owner does not sell two or more single-family
814 dwelling units in which the owner was not residing or was not the most recent resident at the
815 time of sale;
816 (d) the owner does not retain or use the facilities or services of [
817 broker or salesperson; and
818 (e) the owner does not use [
819 57-21-5 (2) in the sale or rental of the dwelling.
820 (2) This chapter does not apply to a temporary or permanent residence facility operated
821 by a nonprofit [
822 religious organization, including [
823 institution, if the discrimination is by sex, sexual orientation, gender identity, or familial status:
824 (a) for reasons of personal modesty or privacy; or
825 (b) in the furtherance of a religious institution's free exercise of religious rights under
826 the First Amendment of the United States Constitution.
827 (3) This chapter, except for Subsection 57-21-5 (2), does not apply to the rental of a
828 room in [
829 to another person if:
830 (a) the dwelling is designed for occupancy by four or fewer families[
831 (b) the owner-occupant resides in one of the units.
832 (4) [
833 origin, sexual orientation, or gender identity, this chapter does not prohibit a religious
834 organization, association, or society, or [
835 supervised, or controlled by or in conjunction with a religious organization, association, or
836 society, from:
837 (a) limiting the sale, rental, or occupancy of dwellings it owns or operates for primarily
838 noncommercial purposes to persons of the same religion[
839 (b) giving preference to [
841 (5) [
842 prohibit a private club not open to the public, including [
843 or sorority associated with [
844 (i) limiting the rental or occupancy of lodgings to members; or [
845 (ii) giving preference to its members[
846 (b) This Subsection (5) applies only if [
847 as an incident to its primary purpose and not for a commercial purpose.
848 (6) This chapter does not prohibit distinctions based on inability to fulfill the terms and
849 conditions, including financial obligations, of:
850 (a) a lease[
851 (b) a rental agreement[
852 (c) a contract of purchase or sale[
853 (d) a mortgage[
854 (e) a trust deed[
855 (f) another financing agreement.
856 (7) This chapter does not prohibit [
857 (a) requiring its single students to live in housing approved, operated, or owned by the
858 nonprofit educational institution;
859 (b) segregating housing that the nonprofit educational institution approves, operates, or
860 owns on the basis of sex or familial status or both:
861 (i) for reasons of personal modesty or privacy[
862 (ii) in the furtherance of a religious institution's free exercise of religious rights under
863 the First Amendment of the [
864 (c) otherwise assisting [
865 available to students as may be permitted by regulations implementing the federal Fair Housing
866 Amendments Act of 1988 and Title IX of the Education Amendments of 1972.
867 (8) This chapter does not prohibit [
870 (9) [
871 status [
872 financing of [
873 designated as housing for older persons, as defined by Title VIII of the Civil Rights Act of
874 1968, as amended.
875 Section 8. Section 57-21-5 is amended to read:
876 57-21-5. Discriminatory practices enumerated -- Protected persons, classes
878 (1) It is a discriminatory housing practice to do any of the following because of a
879 person's race, color, religion, sex, national origin, familial status, source of income, [
880 disability, sexual orientation, or gender identity:
881 (a) (i) refuse to sell or rent after the making of a bona fide offer[
882 (ii) refuse to negotiate for the sale or rental[
883 (iii) otherwise deny or make unavailable [
884 (b) discriminate against [
885 (i) of the sale or rental of [
886 (ii) in providing facilities or services in connection with the dwelling; or
887 (c) represent to [
888 or rental when [
889 (2) It is a discriminatory housing practice:
890 (a) to:
891 (i) make a representation orally or in writing; [
892 (ii) make, print, circulate, publish, post, or cause to be made, printed, circulated,
893 published, or posted [
894 (iii) use any application form for the sale or rental of a dwelling[
895 (b) if the action described in Subsection (2)(a) directly or indirectly expresses [
896 (i) a preference, limitation, or discrimination based on race, color, religion, sex,
897 national origin, familial status, source of income, [
898 identity; or [
899 (ii) an intent to make [
900 Subsection (2)(b)(i).
901 (3) It is a discriminatory housing practice to induce or attempt to induce, for profit,
903 representation about the entry or prospective entry into the neighborhood of one or more
904 persons of a particular race, color, religion, sex, national origin, familial status, source of
905 income, [
906 (4) A discriminatory housing practice includes:
907 (a) a refusal to permit, at the expense of the person with a disability, reasonable
908 modifications of existing premises occupied or to be occupied by the person if the
909 modifications are necessary to afford that person full enjoyment of the premises, except that in
910 the case of a rental, the landlord, where it is reasonable to do so, may condition permission for
911 a modification on the renter agreeing to restore the interior of the premises, when reasonable, to
912 the condition that existed before the modification, reasonable wear and tear excepted;
913 (b) a refusal to make a reasonable [
915 accommodation may be necessary to afford the person equal opportunity to use and enjoy a
916 dwelling; and
917 (c) in connection with the design and construction of covered multifamily dwellings for
918 first occupancy after March 13, 1991, a failure to design and construct [
919 multifamily dwellings in a manner that:
920 (i) the covered multifamily dwellings have at least one building entrance on an
921 accessible route, unless it is impracticable to have one because of the terrain or unusual
922 characteristics of the site; and
923 (ii) with respect to covered multifamily dwellings with a building entrance on an
924 accessible route:
925 (A) the public use and common use portions of the covered multifamily dwelling are
926 readily accessible to and usable by a person with a disability;
927 (B) all the doors designed to allow passage into and within the covered multifamily
928 dwellings are sufficiently wide to allow passage by a person with a disability who is in a
929 wheelchair; and
930 (C) all premises within these covered multifamily dwellings contain the following
931 features of adaptive design:
932 (I) an accessible route into and through the covered multifamily dwelling;
933 (II) light switches, electrical outlets, thermostats, and other environmental controls in
934 accessible locations;
935 (III) reinforcements in the bathroom walls to allow later installation of grab bars; and
936 (IV) kitchens and bathrooms such that an individual in a wheelchair can maneuver
937 about and use the space.
938 (5) This section also applies to discriminatory housing practices because of race, color,
939 religion, sex, national origin, familial status, source of income, [
940 orientation, or gender identity based upon a person's association with another person.
941 Section 9. Section 57-21-6 is amended to read:
942 57-21-6. Discriminatory housing practices regarding residential real
943 estate-related transactions -- Discriminatory housing practices regarding the provisions
944 of brokerage services.
945 (1) (a) It is a discriminatory housing practice for [
946 includes engaging in residential real estate-related transactions to discriminate against [
947 person in making available [
948 conditions of the residential real estate-related transaction, because of race, color, religion, sex,
949 disability, familial status, source of income, [
951 (b) Residential real estate-related transactions include:
957 (2) It is a discriminatory housing practice to, because of race, color, religion, sex,
958 disability, familial status, source of income, national origin, sexual orientation, or gender
960 (a) deny [
961 multiple-listing service, real estate brokers' organization, or other service, organization, or
962 facility relating to the business of selling or renting dwellings; or [
963 (b) discriminate against [
964 membership, or participation in the organization, service, or facility [
966 (3) This section also applies to a discriminatory housing [
967 race, color, religion, sex, national origin, familial status, source of income, [
968 sexual orientation, or gender identity based upon a person's association with another person.
969 Section 10. Section 57-21-7 is amended to read:
970 57-21-7. Prohibited conduct -- Aiding or abetting in discriminatory actions --
971 Obstruction of division investigation -- Reprisals.
972 (1) It is a discriminatory housing practice to do any of the following:
973 (a) coerce, intimidate, threaten, or interfere with [
974 (i) in the exercise or enjoyment of [
975 (ii) because that person exercised [
977 (iii) because that person aided or encouraged any other person in the exercise or
978 enjoyment of [
979 (b) aid, abet, incite, compel, or coerce a person to engage in [
980 practice prohibited by this chapter;
981 (c) attempt to aid, abet, incite, compel, or coerce a person to engage in [
983 (d) obstruct or prevent [
984 issued under this chapter;
985 (e) resist, prevent, impede, or interfere with the director or [
987 (f) engage in any reprisal against [
988 (i) opposed a practice prohibited under this chapter; or
989 (ii) filed a complaint, testified, assisted, or participated in any manner in [
990 investigation, proceeding, or hearing under this chapter.
991 (2) This section also applies to discriminatory housing practices because of race, color,
992 religion, sex, national origin, familial status, source of income, [
993 orientation, or gender identity based upon a person's association with another person.
Legislative Review Note
as of 1-31-12 11:19 AM