S.B. 93 Enrolled

ANTIDISCRIMINATION ACT AMENDMENTS
1999 GENERAL SESSION
STATE OF UTAH
Sponsor: Ed P. Mayne
AN ACT RELATING TO LABOR; CHANGING THE TERM HANDICAP TO DISABILITY
THROUGHOUT THE ANTIDISCRIMINATION ACT; REPEALING APPOINTMENT OF
COORDINATOR; AND MAKING TECHNICAL CHANGES.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
34A-5-102, as renumbered and amended by Chapter 375, Laws of Utah 1997
34A-5-104, as last amended by Chapter 296 and renumbered and amended by Chapter 375,
Laws of Utah 1997
34A-5-106, as renumbered and amended by Chapter 375, Laws of Utah 1997
34A-5-107, as renumbered and amended by Chapter 375, Laws of Utah 1997
REPEALS:
34A-5-103, as renumbered and amended by Chapter 375, Laws of Utah 1997
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 34A-5-102 is amended to read:
34A-5-102. Definitions.
As used in this chapter:
(1) "Apprenticeship" means [any] a program for the training of apprentices including a
program providing the training of those persons defined as apprentices by Section 35A-6-102 .
(2) "Bona fide occupational qualification" means a characteristic applying to an employee:
(a) that is necessary to the operation; or
(b) is the essence of the employee's employer's business.
(3) "Court" means:
(a) the district court in the judicial district of the state in which the asserted unfair
employment practice occurred[,]; or
(b) if this court is not in session at that time, [then any] a judge of the court described in

Subsection (3)(a).
(4) "Director" means the director of the division.
[(9) "Handicap"] (5) "Disability" means a physical or mental impairment [which] that
substantially limits one or more of [a person's] an individual's major life activities.
[(5)] (6) "Division" means the Division of Antidiscrimination and Labor.
[(6)] (7) "Employee" means any person applying with or employed by an employer.
[(7)] (8) (a) "Employer" means:
(i) the state [or];
(ii) any political subdivision [or];
(iii) a board, commission, department, institution, school district, trust, or agent [thereof, and
every other] of the state or its political subdivisions; or
(iv) a person employing 15 or more employees within the state for each working day in each
of 20 calendar weeks or more in the current or preceding calendar year.
(b) "Employer" does not include:
(i) a religious [organizations] organization or [associations,] association;
(ii) a religious [corporations] corporation sole[,]; or
(iii) any corporation or association constituting a wholly owned subsidiary or agency of any
religious organization or association or religious corporation sole.
[(8)] (9) "Employment agency" means any person:
(a) undertaking to procure employees or opportunities to work for any other person[,]; or
[the]
(b) holding itself out to be equipped to [do so] take an action described in Subsection (9)(a).
(10) "Joint apprenticeship committee" means any association of representatives of a labor
organization and an employer providing, coordinating, or controlling an apprentice training program.
(11) "Labor organization" means any organization [which] that exists for the purpose in
whole or in part of:
(a) collective bargaining [or of];
(b) dealing with employers concerning grievances, terms or conditions of employment[,];

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or [of]
(c) other mutual aid or protection in connection with employment.
(12) "National origin" means the place of birth, domicile, or residence of an individual or
of an individual's ancestors.
(13) "On-the-job-training" means any program designed to instruct a person who, while
learning the particular job for which [he] the person is receiving instruction[,]:
(a) is also employed at that job[,]; or [who]
(b) may be employed by the employer conducting the program during the course of the
program, or when the program is completed.
(14) "Person" means one or more individuals, partnerships, associations, corporations, legal
representatives, trusts or trustees, receivers, the state and all political subdivisions and agencies of
the state.
(15) "Presiding officer" means the same as that term is defined in Section 63-46b-2 .
(16) "Prohibited employment practice" means a practice specified as discriminatory, and
therefore unlawful, in Section 34A-5-106 .
(17) "Retaliate" means the taking of adverse action by an employer, employment agency,
labor organization, apprenticeship program, on-the-job training program, or vocational school
against one of its employees, applicants, or members because the employee, applicant, or member:
(a) has opposed any employment practice prohibited under this chapter; or
(b) filed charges, testified, assisted, or participated in any way in any proceeding,
investigation, or hearing under this chapter.
(18) "Vocational school" means any school or institution conducting a course of instruction,
training, or retraining to prepare individuals to follow an occupation or trade, or to pursue a manual,
technical, industrial, business, commercial, office, personal services, or other nonprofessional
occupations.
Section 2. Section 34A-5-104 is amended to read:
34A-5-104. Powers.
(1) (a) The commission has jurisdiction over the subject of employment practices and

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discrimination made unlawful by this chapter.
[(1)] (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and
for the enforcement of this chapter.
(2) The division may:
(a) appoint and prescribe the duties of investigators and other employees and agents that it
considers necessary for the enforcement of this chapter;
(b) receive, reject, investigate, and pass upon complaints alleging:
(i) discrimination in:
(A) employment[,];
(B) apprenticeship programs[,];
(C) on-the-job training programs[,]; and
(D) vocational schools; or
(ii) the existence of a discriminatory or prohibited employment practice by:
(A) a person;
(B) an employer;
(C) an employment agency;
(D) a labor organization;
(E) the employees or members of an employment agency or labor organization;
(F) a joint apprenticeship committee; and
(G) vocational school;
(c) investigate and study the existence, character, causes, and extent of discrimination in
employment, apprenticeship programs, on-the-job training programs, and vocational schools in this
state by:
(i) employers[,];
(ii) employment agencies[,];
(iii) labor organizations[,];
(iv) joint apprenticeship committees[,]; and
(v) vocational schools;

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(d) formulate plans for the elimination of discrimination by educational or other means;
(e) hold hearings upon complaint made against:
(i) a person;
(ii) an employer;
(iii) an employment agency;
(iv) a labor organization [or];
(v) the employees or members of an employment agency or labor organization;
[(v)] (vi) a joint apprenticeship committee; or
[(vi)] (vii) a vocational school;
(f) issue publications and reports of investigations and research that [will tend to]:
(i) promote good will among the various racial, religious, and ethnic groups of the state[,];
and [that will]
(ii) minimize or eliminate discrimination in employment because of race, color, sex, religion,
national origin, age, or [handicap] disability;
(g) prepare and transmit to the governor, at least once each year, reports describing:
(i) its proceedings, investigations, and hearings [it has conducted and];
(ii) the outcome of those hearings[,];
(iii) decisions [it] the division has rendered[,]; and
(iv) the other work performed by [it] the division;
(h) recommend policies to the governor, and submit recommendation to employers,
employment agencies, and labor organizations to implement those policies;
(i) recommend any legislation concerning discrimination because of race, sex, color, national
origin, religion, age, or [handicap] disability to the governor that it considers necessary; and
(j) within the limits of any appropriations made for its operation, cooperate with other
agencies or organizations, both public and private, in the planning and conducting of educational
programs designed to eliminate discriminatory practices prohibited under this chapter.
(3) The division shall investigate alleged discriminatory practices involving officers or
employees of state government if requested to do so by the Career Service Review Board.

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(4) (a) In any hearing held under [the authority of] this chapter, the division may:
(i) subpoena witnesses and compel their attendance at the hearing;
(ii) administer oaths and take the testimony of any person under oath; and
(iii) compel any person to produce for examination any books, papers, or other information
relating to the matters raised by the complaint.
(b) The division director or a hearing examiner appointed by the division director may
conduct hearings.
(c) If a witness fails or refuses to obey a subpoena issued by the division, the division may
petition the district court to enforce the subpoena.
(d) In the event a witness asserts a privilege against self-incrimination, testimony and
evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
Section 3. Section 34A-5-106 is amended to read:
34A-5-106. Discriminatory or unfair employment practices -- Permitted practices.
(1) It is a discriminatory or prohibited employment practice[:] to take any action described
in Subsections (1)(a) through (f).
(a) (i) [for an] An employer [to] may not refuse to hire, [or] promote, [or to] discharge,
demote, or terminate any person, or to retaliate against, harass, or discriminate in matters of
compensation or in terms, privileges, and conditions of employment against any person otherwise
qualified, because of:
(A) race[,];
(B) color[,];
(C) sex[,];
(D) pregnancy, childbirth, or pregnancy-related conditions[,];
(E) age, if the individual is 40 years of age or older[,];
(F) religion[,];
(G) national origin[,]; or [handicap]
(H) disability. [No]
(ii) An applicant [nor] or candidate for any job or position may not be considered "otherwise

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qualified," unless [he] the applicant or candidate possesses the education, training, ability, moral
character, integrity, disposition to work, adherence to reasonable rules and regulations, and other job
related qualifications required by an employer for any particular job, job classification, or position
to be filled or created[;].
[(ii) as] (iii) (A) As used in this chapter, "to discriminate in matters of compensation" means
the payment of differing wages or salaries to employees having substantially equal experience,
responsibilities, and skill for the particular job. [However,]
(B) Notwithstanding Subsection (1)(a)(iii)(A):
(I) nothing in this chapter prevents increases in pay as a result of longevity with the
employer, if the salary increases are uniformly applied and available to all employees on a
substantially proportional basis[. Nothing]; and
(II) nothing in this section prohibits an employer and employee from agreeing to a rate of
pay or work schedule designed to protect the employee from loss of Social Security payment or
benefits if the employee is eligible for those payments[;].
(b) [for an] An employment agency may not:
(i) [to] refuse to list and properly classify for employment, or [to] refuse to refer an
individual for employment, in a known available job for which the individual is otherwise qualified,
because of:
(A) race[,];
(B) color[,];
(C) sex[,];
(D) pregnancy, childbirth, or pregnancy-related conditions[,];
(E) religion[,];
(F) national origin[,];
(G) age, if the individual is 40 years of age or older[,]; or [handicap;]
(H) disability;
(ii) [to] comply with a request from an employer for referral of applicants for employment
if the request indicates either directly or indirectly that the employer discriminates in employment

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on account of:
(A) race[,];
(B) color[,];
(C) sex[,];
(D) pregnancy, childbirth, or pregnancy-related conditions[,];
(E) religion[,];
(F) national origin[,];
(G) age, if the individual is 40 years of age or older[,]; or [handicap;]
(H) disability.
(c) [for a] A labor organization [to] may not exclude any individual otherwise qualified from
full membership rights in the labor organization, [or to] expel the individual from membership in
the labor organization, or [to] otherwise discriminate against or harass any of its members in full
employment of work opportunity, or representation, because of:
(i) race[,];
(ii) sex[,];
(iii) pregnancy, childbirth, or pregnancy-related conditions[,];
(iv) religion[,];
(v) national origin[,];
(vi) age, if the individual is 40 years of age or older[,]; or [handicap;]
(vii) disability.
(d) [for any] Unless based upon a bona fide occupational qualification, or required by, and
given to, an agency of government for security reasons, an employer, employment agency, or labor
organization [to] may not print, or circulate, or cause to be printed or circulated, any statement,
advertisement, or publication, [or to] use any form of application for employment or membership,
or [to] make any inquiry in connection with prospective employment or membership[, which] that
expresses, either directly or indirectly[,]:
(i) any limitation, specification, or discrimination as to:
(A) race[,];

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(B) color[,];
(C) religion[,];
(D) sex[,];
(E) pregnancy, childbirth, or pregnancy-related conditions[,];
(F) national origin[,];
(G) age, if the individual is 40 years of age or older[,]; or [handicap or]
(H) disability;
(ii) the intent to make any [such] limitation, specification, or discrimination[; unless based
upon a bona fide occupational qualification, or required by, and given to, an agency of government
for security reasons;] described in Subsection (1)(d)(i).
(e) [for any] A person, whether or not an employer, an employment agency, a labor
organization, or the employees or members thereof, [to] may not:
(i) aid, incite, compel, or coerce the doing of an act defined in this section to be a
discriminatory or prohibited employment practice; [or to]
(ii) obstruct or prevent any person from complying with this chapter, or any order issued
under it; or [to]
(iii) attempt, either directly or indirectly, to commit any act prohibited in this section[;].
(f) [for any] An employer, labor organization, joint apprenticeship committee, or vocational
school, providing, coordinating, or controlling apprenticeship programs, or providing, coordinating,
or controlling on-the-job-training programs, instruction, training, or retraining programs may not:
(i) [to] deny to, or withhold from, any qualified person, the right to be admitted to, or
participate in any apprenticeship training program, on-the-job-training program, or other
occupational instruction, training or retraining program because of:
(A) race[,];
(B) color[,];
(C) sex[,];
(D) pregnancy, childbirth, or pregnancy-related conditions[,];
(E) religion[,];

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(F) national origin[,];
(G) age, if the individual is 40 years of age or older[, or handicap the right to be admitted
to, or participate in any apprenticeship training program, on-the-job-training program, or other
occupational instruction, training or retraining program;]; or
(H) disability;
(ii) [to] discriminate against or harass any qualified person in that person's pursuit of such
programs, or to discriminate against such a person in the terms, conditions, or privileges of such
programs, because of:
(A) race[,];
(B) color[,];
(C) sex[,];
(D) pregnancy, childbirth, or pregnancy-related conditions[,];
(E) religion[,];
(F) national origin[,];
(G) age, if the individual is 40 years of age or older[,]; or [handicap; or]
(H) disability; or
(iii) [to] print, [or] publish, or cause to be printed or published, any notice or advertisement
relating to employment by the employer, or membership in or any classification or referral for
employment by a labor organization, or relating to any classification or referral for employment by
an employment agency, indicating any preference, limitation, specification, or discrimination based
on race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, religion, national origin,
age, if the individual is 40 years of age or older, or [handicap] disability except that a notice or
advertisement may indicate a preference, limitation, specification, or discrimination based on race,
color, religion, sex, pregnancy, childbirth, or pregnancy-related conditions, age, national origin, or
[handicap] disability when religion, race, color, sex, age, national origin, or [handicap] disability is
a bona fide occupational qualification for employment.
(2) Nothing contained in Subsections (1)(a) through (1)(f) shall be construed to prevent:
(a) the termination of employment of an individual who is physically, mentally, or

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emotionally unable to perform the duties required by that individual's employment[, or to preclude];
(b) the variance of insurance premiums, of coverage on account of age[,]; or [affect any]
(c) a restriction [upon] on the activities of individuals licensed by the liquor authority with
respect to persons under 21 years of age.
(3) (a) It is not a discriminatory or prohibited employment practice:
(i) for an employer to hire and employ employees, for an employment agency to classify or
refer for employment any individual, for a labor organization to classify its membership or to classify
or refer for employment any individual or for an employer, labor organization, or joint
labor-management committee controlling apprenticeship or other training or retraining programs to
admit or employ any individual in any such program, on the basis of religion, sex, pregnancy,
childbirth, or pregnancy-related conditions, age, national origin, or [handicap] disability in those
certain instances where religion, sex, pregnancy, childbirth, or pregnancy-related conditions, age,
if the individual is 40 years of age or older, national origin, or [handicap] disability is a bona fide
occupational qualification reasonably necessary to the normal operation of that particular business
or enterprise;
(ii) for a school, college, university, or other educational institution to hire and employ
employees of a particular religion if the school, college, university, or other educational institution
is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religious
corporation, association, or society, or if the curriculum of the school, college, university, or other
educational institution is directed toward the propagation of a particular religion;
(iii) for an employer to give preference in employment to [his own]:
(A) the employer's:
(I) spouse[, son,];
(II) child; or
(III) son-in-law[, daughter,] or daughter-in-law[, or to];
(B) any person for whom the employer is or would be liable to furnish financial support if
those persons were unemployed; [or for an employer to give preference in employment to]
(C) any person to whom the employer during the preceding six months has furnished more

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than one-half of total financial support regardless of whether or not the employer was or is legally
obligated to furnish support; or [for an employer to give preference in employment to]
(D) any person whose education or training was substantially financed by the employer for
a period of two years or more.
(b) Nothing [contained] in this chapter applies to any business or enterprise on or near an
Indian reservation with respect to any publicly announced employment practice of the business or
enterprise under which preferential treatment is given to any individual because [he] that individual
is a native American Indian living on or near an Indian reservation.
(c) Nothing [contained] in this chapter shall be interpreted to require any employer,
employment agency, labor organization, vocational school, joint labor-management committee, or
apprenticeship program subject to this chapter to grant preferential treatment to any individual or to
any group because of the race, color, religion, sex, age, national origin, or [handicap] disability of
the individual or group on account of an imbalance which may exist with respect to the total number
or percentage of persons of any race, color, religion, sex, age, national origin, or [handicap] disability
employed by any employer, referred or classified for employment by an employment agency or labor
organization, admitted to membership or classified by any labor organization, or admitted to or
employed in, any apprenticeship or other training program, in comparison with the total number or
percentage of persons of that race, color, religion, sex, age, national origin, or [handicap] disability
in any community or county or in the available work force in any community or county.
(4) It is not a discriminatory or prohibited practice with respect to age to observe the terms
of a bona fide seniority system or any bona fide employment benefit plan such as a retirement,
pension, or insurance plan [which] that is not a subterfuge to evade the purposes of this chapter,
except that no such employee benefit plan shall excuse the failure to hire [any] an individual.
(5) Notwithstanding Subsection (4), or any other statutory provision to the contrary, [other
than Subsection (6) and Section 67-5-8 , and except where age is a bona fide occupational
qualification, no] a person [shall] may not be subject to involuntary termination or retirement from
employment on the basis of age alone, if the individual is 40 years of age or older, except:
(a) under Subsection (6);

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(b) under Section 67-5-8 ; and
(c) when age is a bona fide occupational qualification.
(6) Nothing in this section prohibits compulsory retirement of an employee who has attained
at least 65 years of age, and who, for the two-year period immediately before retirement, is employed
in a bona fide executive or a high policymaking position, if:
(a) that employee is entitled to an immediate nonforfeitable annual retirement benefit from
[his] the employee's employer's pension, profit-sharing, savings, or deferred compensation plan, or
any combination of those plans[, which]; and
(b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000.
Section 4. Section 34A-5-107 is amended to read:
34A-5-107. Procedure for aggrieved person to file claim -- Investigations --
Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.
(1) (a) Any person claiming to be aggrieved by a discriminatory or prohibited employment
practice may, or that person's attorney or agent may, make, sign, and file with the division a request
for agency action.
(b) Every request for agency action shall be verified under oath or affirmation.
(c) A request for agency action made under this section shall be filed within 180 days after
the alleged discriminatory or prohibited employment practice occurred.
(2) Any employer, labor organization, joint apprenticeship committee, or vocational school
who has employees or members who refuse or threaten to refuse to comply with this chapter may
file with the division a request for agency action asking the division for assistance to obtain their
compliance by conciliation or other remedial action.
(3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the division
shall promptly assign an investigator to attempt a settlement between the parties by conference,
conciliation, or persuasion.
(b) If no settlement is reached, the investigator shall make a prompt impartial investigation
of all allegations made in the request for agency action.
(c) The division and its staff, agents, and employees shall conduct every investigation in

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fairness to all parties and agencies involved, and may not attempt a settlement between the parties
if it is clear that no discriminatory or prohibited employment practice has occurred.
(d) An aggrieved party may withdraw the request for agency action prior to the issuance of
a final order.
(4) (a) If the initial attempts at settlement are unsuccessful, and the investigator uncovers
insufficient evidence during the investigation to support the allegations of a discriminatory or
prohibited employment practice set out in the request for agency action, the investigator shall
formally report these findings to the director or the director's designee.
(b) Upon receipt of the investigator's report, the director or the director's designee may issue
a determination and order for dismissal of the adjudicative proceeding.
(c) A party may make a written request to the Division of Adjudication for an evidentiary
hearing to review de novo the director's or the director's designee's determination and order within
30 days of the date [of] the determination and order for dismissal is issued.
(d) If the director or the director's designee receives no timely request for a hearing, the
determination and order issued by the director or the director's designee becomes the final order of
the commission.
(5) (a) If the initial attempts at settlement are unsuccessful and the investigator uncovers
sufficient evidence during the investigation to support the allegations of a discriminatory or
prohibited employment practice set out in the request for agency action, the investigator shall
formally report these findings to the director or the director's designee.
(b) Upon receipt of the investigator's report the director or the director's designee may issue
a determination and order based on the investigator's report.
(c) A party may file a written request to the Division of Adjudication for an evidentiary
hearing to review de novo the director's or the director's designee's determination and order within
30 days of the date [of] the determination and order is issued.
(d) If the director or the director's designee receives no timely request for a hearing, the
determination and order issued by the director or the director's designee requiring the respondent to
cease any discriminatory or prohibited employment practice and to provide relief to the aggrieved

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party becomes the final order of the commission.
(6) In any adjudicative proceeding to review the director's or the director's designee's
determination that a prohibited employment practice has occurred, the division shall present the
factual and legal basis of its determination.
(7) Prior to commencement of an evidentiary hearing, the party filing the request for agency
action may reasonably and fairly amend any allegation, and the respondent may amend its answer.
Those amendments may be made during or after a hearing but only with permission of the presiding
officer.
(8) (a) If, upon all the evidence at a hearing, the presiding officer finds that a respondent has
not engaged in a discriminatory or prohibited employment practice, the presiding officer shall issue
an order dismissing the request for agency action containing the allegation of a discriminatory or
prohibited employment practice.
(b) The presiding officer may order that the respondent be reimbursed by the complaining
party for the respondent's attorneys' fees and costs.
(9) If upon all the evidence at the hearing, the presiding officer finds that a respondent has
engaged in a discriminatory or prohibited employment practice, the presiding officer shall issue an
order requiring the respondent to:
(a) cease any discriminatory or prohibited employment practice; and [to]
(b) provide relief to the complaining party, including reinstatement, back pay and benefits,
and attorneys' fees and costs.
(10) Conciliation between the parties is to be urged and facilitated at all stages of the
adjudicative process.
(11) (a) Either party may file with the Division of Adjudication a written request for review
before the commissioner or Appeals Board of the order issued by the presiding officer in accordance
with Section 63-46b-12 and Chapter 1, Part 3, Adjudicative Proceedings.
(b) If there is no timely request for review, the order issued by the presiding officer becomes
the final order of the commission.
(12) An order of the commission under Subsection (11)(a) is subject to judicial review as

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provided in Section 63-46b-16 and Chapter 1, Part 3, Adjudicative Proceedings.
(13) The commission shall have authority to make rules concerning procedures under this
chapter in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(14) The commission and its staff may not divulge or make public any information gained
from any investigation, settlement negotiation, or proceeding before the commission except as
provided in Subsections (14)(a) through (d).
(a) Information used by the director or the director's designee in making any determination
may be provided to all interested parties for the purpose of preparation for and participation in
proceedings before the commission.
(b) General statistical information may be disclosed provided the identities of the individuals
or parties are not disclosed.
(c) Information may be disclosed for inspection by the attorney general or other legal
representatives of the state or commission.
(d) Information may be disclosed for information and reporting requirements of the federal
government.
(15) The procedures contained in this section are the exclusive remedy under state law for
employment discrimination based upon race, color, sex, retaliation, pregnancy, childbirth, or
pregnancy-related conditions, age, religion, national origin, or [handicap] disability.
(16) The commencement of an action under federal law for relief based upon any act
prohibited by this chapter bars the commencement or continuation of any adjudicative proceeding
before the commission in connection with the same claims under this chapter. Nothing in this
subsection is intended to alter, amend, modify, or impair the exclusive remedy provision set forth
in Subsection (15).
Section 5. Repealer.
This act repeals:
Section 34A-5-103, Jurisdiction of commission -- Coordinator of fair employment
practices.

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