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6 This act modifies the Utah Antidiscrimination Act to reduce the membership of the
7 Antidiscrimination and Labor Advisory Committee; to amend what constitutes
8 discriminatory or unfair employment practices; and to amend provisions related to the
9 procedure for assured persons to file claims. This act makes technical changes.
10 This act affects sections of Utah Code Annotated 1953 as follows:
12 17-33-10, as last amended by Chapter 375, Laws of Utah 1997
13 34A-5-105, as last amended by Chapter 69, Laws of Utah 2000
14 34A-5-106, as last amended by Chapter 161, Laws of Utah 1999
15 34A-5-107, as last amended by Chapter 161, Laws of Utah 1999
16 34A-5-108, as renumbered and amended by Chapter 375, Laws of Utah 1997
17 67-19-4, as last amended by Chapter 375, Laws of Utah 1997
18 Be it enacted by the Legislature of the state of Utah:
19 Section 1. Section 17-33-10 is amended to read:
20 17-33-10. Grievance and appeals procedure -- Employees' complaints of
21 discriminatory or unfair employment practice.
22 (1) Any county to which the provisions of this act apply shall establish in its personnel
23 rules and regulations a grievance and appeals procedure. The procedure shall be used to
24 resolve disputes arising from grievances as defined in the rules and regulations, including but
25 not limited to acts of discrimination. The procedure may also be used by employees in the
26 event of dismissal, demotion, suspension, or transfer.
27 (2) Any charge by a county career service employee of discriminatory or [
28 prohibited employment practice as prohibited by Section 34A-5-106 , can be filed with the
29 Division of Antidiscrimination and Labor within the Labor Commission. Complaints shall be
30 filed within 30 days of the issuance of a written decision of the county career service council.
31 Section 2. Section 34A-5-105 is amended to read:
32 34A-5-105. Antidiscrimination and Labor Advisory Council -- Membership --
33 Appointment -- Term -- Powers and duties -- Chair.
34 (1) There is created an Antidiscrimination and Labor Advisory Council consisting of:
35 (a) [
36 (i) [
37 (ii) [
38 (iii) two representatives of persons who seek to rent or purchase dwellings as defined
39 in Section 57-21-2 ;
40 (iv) two representatives of persons who:
41 (A) sell or rent dwellings; and
42 (B) are subject to Title 57, Chapter 21, Utah Fair Housing Act; and
43 (v) [
44 (b) the commissioner or the commissioner's designee as a nonvoting member of the
46 (2) In making the appointments under Subsection (1), the commissioner shall consider
47 representation of the following protected classes:
48 (a) race;
49 (b) color;
50 (c) national origin;
51 (d) gender;
52 (e) religion;
53 (f) age;
54 (g) persons with disabilities;
55 (h) familial status as defined in Section 57-21-2 ; and
56 (i) source of income as defined in Section 57-21-2 .
57 (3) The division shall provide any necessary staff support for the council.
58 (4) (a) Except as required by Subsection (4)(b), as terms of current council members
59 expire, the commissioner shall appoint each new member or reappointed member to a four-year
61 (b) Notwithstanding the requirements of Subsection (4)(a), the commissioner shall, at
62 the time of appointment or reappointment, adjust the length of terms to ensure that the terms of
63 council members are staggered so that approximately half of the council is appointed every two
65 (5) (a) When a vacancy occurs in the membership for any reason, the replacement shall
66 be appointed for the unexpired term.
67 (b) The commissioner shall terminate the term of a council member who ceases to be
68 representative as designated by the original appointment.
69 (6) (a) (i) Members who are not government employees shall receive no compensation
70 or benefits for their services, but may receive per diem and expenses incurred in the
71 performance of the member's official duties at the rates established by the Division of Finance
72 under Sections 63A-3-106 and 63A-3-107 .
73 (ii) Members may decline to receive per diem and expenses for their service.
74 (b) (i) State government officer and employee members who do not receive salary, per
75 diem, or expenses from their agency for their service may receive per diem and expenses
76 incurred in the performance of their official duties from the council at the rates established by
77 the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
78 (ii) State government officer and employee members may decline to receive per diem
79 and expenses for their service.
80 (7) (a) The advisory council shall:
81 (i) offer advice on issues requested by:
82 (A) the commission[
83 (B) the division[
84 (C) the Legislature; and [
85 (ii) make recommendations to the commission and division regarding issues related to:
93 (b) The council shall confer at least quarterly for the purpose of advising the
94 commission, division, and the Legislature regarding issues described in Subsection (7)(a).
95 (8) (a) The commissioner or the commissioner's designee shall serve as chair of the
97 (b) The chair is charged with the responsibility of calling the necessary meetings.
98 Section 3. Section 34A-5-106 is amended to read:
99 34A-5-106. Discriminatory or prohibited employment practices -- Permitted
101 (1) It is a discriminatory or prohibited employment practice to take any action
102 described in Subsections (1)(a) through (f).
103 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate
104 any person, or to retaliate against, harass, or discriminate in matters of compensation or in
105 terms, privileges, and conditions of employment against any person otherwise qualified,
106 because of:
107 (A) race;
108 (B) color;
109 (C) sex;
110 (D) pregnancy, childbirth, or pregnancy-related conditions;
111 (E) age, if the individual is 40 years of age or older;
112 (F) religion;
113 (G) national origin; or
114 (H) disability.
115 (ii) [
116 "otherwise qualified," unless [
117 required by an employer for any particular job, job classification, or position:
118 (A) education[
119 (B) training[
120 (C) ability[
121 (D) moral character[
122 (E) integrity[
123 (F) disposition to work[
124 (G) adherence to reasonable rules and regulations[
125 (H) other job related qualifications required by an employer [
127 (iii) (A) As used in this chapter, "to discriminate in matters of compensation" means
128 the payment of differing wages or salaries to employees having substantially equal experience,
129 responsibilities, and skill for the particular job.
130 (B) Notwithstanding Subsection (1)(a)(iii)(A):
131 (I) nothing in this chapter prevents increases in pay as a result of longevity with the
132 employer, if the salary increases are uniformly applied and available to all employees on a
133 substantially proportional basis; and
134 (II) nothing in this section prohibits an employer and employee from agreeing to a rate
135 of pay or work schedule designed to protect the employee from loss of Social Security payment
136 or benefits if the employee is eligible for those payments.
137 (b) An employment agency may not:
138 (i) refuse to list and properly classify for employment, or refuse to refer an individual
139 for employment, in a known available job for which the individual is otherwise qualified,
140 because of:
141 (A) race;
142 (B) color;
143 (C) sex;
144 (D) pregnancy, childbirth, or pregnancy-related conditions;
145 (E) religion;
146 (F) national origin;
147 (G) age, if the individual is 40 years of age or older; or
148 (H) disability; or
149 (ii) comply with a request from an employer for referral of applicants for employment
150 if the request indicates either directly or indirectly that the employer discriminates in
151 employment on account of:
152 (A) race;
153 (B) color;
154 (C) sex;
155 (D) pregnancy, childbirth, or pregnancy-related conditions;
156 (E) religion;
157 (F) national origin;
158 (G) age, if the individual is 40 years of age or older; or
159 (H) disability.
160 (c) A labor organization may not exclude any individual otherwise qualified from full
161 membership rights in the labor organization, expel the individual from membership in the labor
162 organization, or otherwise discriminate against or harass any of [
163 members in full employment of work opportunity, or representation, because of:
164 (i) race;
165 (ii) sex;
166 (iii) pregnancy, childbirth, or pregnancy-related conditions;
167 (iv) religion;
168 (v) national origin;
169 (vi) age, if the individual is 40 years of age or older; or
170 (vii) disability.
171 (d) Unless based upon a bona fide occupational qualification, or required by[
172 given to[
173 labor organization may not print, or circulate, or cause to be printed or circulated, any
174 statement, advertisement, or publication, use any form of application for employment or
175 membership, or make any inquiry in connection with prospective employment or membership
176 that expresses, either directly or indirectly:
177 (i) any limitation, specification, or discrimination as to:
178 (A) race;
179 (B) color;
180 (C) religion;
181 (D) sex;
182 (E) pregnancy, childbirth, or pregnancy-related conditions;
183 (F) national origin;
184 (G) age, if the individual is 40 years of age or older; or
185 (H) disability;
186 (ii) the intent to make any limitation, specification, or discrimination described in
187 Subsection (1)(d)(i).
188 (e) A person, whether or not an employer, an employment agency, a labor organization,
189 or the employees or members [
190 organization, may not:
191 (i) aid, incite, compel, or coerce the doing of an act defined in this section to be a
192 discriminatory or prohibited employment practice;
193 (ii) obstruct or prevent any person from complying with this chapter, or any order
194 issued under [
195 (iii) attempt, either directly or indirectly, to commit any act prohibited in this section.
196 (f) (i) An employer, labor organization, joint apprenticeship committee, or vocational
197 school, providing, coordinating, or controlling apprenticeship programs, or providing,
198 coordinating, or controlling on-the-job-training programs, instruction, training, or retraining
199 programs may not:
201 participate in any apprenticeship training program, on-the-job-training program, or other
202 occupational instruction, training or retraining program because of:
213 in the terms, conditions, or privileges of [
214 because of:
224 printed or published, any notice or advertisement relating to employment by the employer, or
225 membership in or any classification or referral for employment by a labor organization, or
226 relating to any classification or referral for employment by an employment agency, indicating
227 any preference, limitation, specification, or discrimination based on:
228 (I) race[
229 (II) color[
230 (III) sex[
231 (IV) pregnancy, childbirth, or pregnancy-related conditions[
232 (V) religion[
233 (VI) national origin[
234 (VII) age, if the individual is 40 years of age or older[
235 (VIII) disability [
236 (ii) Notwithstanding Subsection (1)(f)(i)(C), if the following is a bona fide
237 occupational qualification for employment, a notice or advertisement described in Subsection
238 (1)(f)(i)(C) may indicate a preference, limitation, specification, or discrimination based on:
239 (A) race[
240 (B) color[
241 (C) religion[
242 (D) sex[
243 (E) pregnancy, childbirth, or pregnancy-related conditions[
244 (F) age[
245 (G) national origin[
246 (H) disability [
248 (2) Nothing contained in Subsections (1)(a) through (1)(f) shall be construed to
250 (a) the termination of employment of an individual who is physically, mentally, or
251 emotionally unable to perform the duties required by that individual's employment with or
252 without reasonable accommodation;
253 (b) the variance of insurance premiums[
254 (c) a restriction on the activities of individuals licensed by the liquor authority with
255 respect to persons under 21 years of age.
256 (3) (a) It is not a discriminatory or prohibited employment practice:
257 (i) for an employer to hire and employ employees, for an employment agency to
258 classify or refer for employment any individual, for a labor organization to classify its
259 membership or to classify or refer for employment any individual or for an employer, labor
260 organization, or joint labor-management committee controlling apprenticeship or other training
261 or retraining programs to admit or employ any individual in any such program, on the basis of
262 religion, sex, pregnancy, childbirth, or pregnancy-related conditions, age, national origin, or
263 disability in those certain instances where religion, sex, pregnancy, childbirth, or
264 pregnancy-related conditions, age, if the individual is 40 years of age or older, national origin,
265 or disability is a bona fide occupational qualification reasonably necessary to the normal
266 operation of that particular business or enterprise;
267 (ii) for a school, college, university, or other educational institution to hire and employ
268 employees of a particular religion if:
269 (A) the school, college, university, or other educational institution is, in whole or in
270 substantial part, owned, supported, controlled, or managed by a particular religious corporation,
271 association, or society[
272 (B) the curriculum of the school, college, university, or other educational institution is
273 directed toward the propagation of a particular religion;
274 (iii) for an employer to give preference in employment to:
275 (A) the employer's:
276 (I) spouse;
277 (II) child; or
278 (III) son-in-law or daughter-in-law;
279 (B) any person for whom the employer is or would be liable to furnish financial
280 support if those persons were unemployed;
281 (C) any person to whom the employer during the preceding six months has furnished
282 more than one-half of total financial support regardless of whether or not the employer was or
283 is legally obligated to furnish support; or
284 (D) any person whose education or training was substantially financed by the employer
285 for a period of two years or more.
286 (b) Nothing in this chapter applies to any business or enterprise on or near an Indian
287 reservation with respect to any publicly announced employment practice of the business or
288 enterprise under which preferential treatment is given to any individual because that individual
289 is a native American Indian living on or near an Indian reservation.
290 (c) Nothing in this chapter shall be interpreted to require any employer, employment
291 agency, labor organization, vocational school, joint labor-management committee, or
292 apprenticeship program subject to this chapter to grant preferential treatment to any individual
293 or to any group because of the race, color, religion, sex, age, national origin, or disability of the
294 individual or group on account of an imbalance which may exist with respect to the total
295 number or percentage of persons of any race, color, religion, sex, age, national origin, or
296 disability employed by any employer, referred or classified for employment by an employment
297 agency or labor organization, admitted to membership or classified by any labor organization,
298 or admitted to or employed in, any apprenticeship or other training program, in comparison
299 with the total number or percentage of persons of that race, color, religion, sex, age, national
300 origin, or disability in any community or county or in the available work force in any
301 community or county.
302 (4) It is not a discriminatory or prohibited practice with respect to age to observe the
303 terms of a bona fide seniority system or any bona fide employment benefit plan such as a
304 retirement, pension, or insurance plan that is not a subterfuge to evade the purposes of this
305 chapter, except that no such employee benefit plan shall excuse the failure to hire an individual.
306 (5) Notwithstanding Subsection (4), or any other statutory provision to the contrary, a
307 person may not be subject to involuntary termination or retirement from employment on the
308 basis of age alone, if the individual is 40 years of age or older, except:
309 (a) under Subsection (6);
310 (b) under Section 67-5-8 ; and
311 (c) when age is a bona fide occupational qualification.
312 (6) Nothing in this section prohibits compulsory retirement of an employee who has
313 attained at least 65 years of age, and who, for the two-year period immediately before
314 retirement, is employed in a bona fide executive or a high policymaking position, if:
315 (a) that employee is entitled to an immediate nonforfeitable annual retirement benefit
316 from the employee's employer's pension, profit-sharing, savings, or deferred compensation
317 plan, or any combination of those plans; and
318 (b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000.
319 Section 4. Section 34A-5-107 is amended to read:
320 34A-5-107. Procedure for aggrieved person to file claim -- Investigations --
321 Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.
322 (1) (a) Any person claiming to be aggrieved by a discriminatory or prohibited
323 employment practice may, or that person's attorney or agent may, make, sign, and file with the
324 division a request for agency action.
325 (b) Every request for agency action shall be verified under oath or affirmation.
326 (c) A request for agency action made under this section shall be filed within 180 days
327 after the alleged discriminatory or prohibited employment practice occurred.
328 (d) The division may transfer a request for agency action filed with the division
329 pursuant to this section to the federal Equal Employment Opportunity Commission in
330 accordance with the provisions of any work-share agreement that is:
331 (i) between the division and the Equal Employment Opportunity Commission; and
332 (ii) in effect on the day on which the request for agency action is transferred.
333 (2) Any employer, labor organization, joint apprenticeship committee, or vocational
334 school who has [
336 for agency action asking the division for assistance to obtain [
337 compliance by conciliation or other remedial action.
338 (3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the
339 division shall promptly assign an investigator to attempt a settlement between the parties by
340 conference, conciliation, or persuasion.
341 (b) If no settlement is reached, the investigator shall make a prompt impartial
342 investigation of all allegations made in the request for agency action.
343 (c) The division and its staff, agents, and employees:
344 (i) shall conduct every investigation in fairness to all parties and agencies involved[
346 (ii) may not attempt a settlement between the parties if it is clear that no discriminatory
347 or prohibited employment practice has occurred.
348 (d) An aggrieved party may withdraw the request for agency action prior to the
349 issuance of a final order.
350 (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator
351 uncovers insufficient evidence during the investigation to support the allegations of a
352 discriminatory or prohibited employment practice set out in the request for agency action, the
353 investigator shall formally report these findings to the director or the director's designee.
354 (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director
355 or the director's designee may issue a determination and order for dismissal of the adjudicative
357 (c) A party may make a written request to the Division of Adjudication for an
358 evidentiary hearing to review de novo the director's or the director's designee's determination
359 and order within 30 days of the date the determination and order for dismissal is issued.
360 (d) If the director or the director's designee receives no timely request for a hearing, the
361 determination and order issued by the director or the director's designee becomes the final order
362 of the commission.
363 (5) (a) If the initial attempts at settlement are unsuccessful and the investigator
364 uncovers sufficient evidence during the investigation to support the allegations of a
365 discriminatory or prohibited employment practice set out in the request for agency action, the
366 investigator shall formally report these findings to the director or the director's designee.
367 (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the
368 director or the director's designee may issue a determination and order based on the
369 investigator's report.
370 (ii) A determination and order issued under this Subsection (5)(b) shall:
371 (A) direct the respondent to cease any discriminatory or prohibited employment
372 practice; and
373 (B) provide relief to the aggrieved party as the director or the director's designee
374 determines is appropriate.
375 (c) A party may file a written request to the Division of Adjudication for an evidentiary
376 hearing to review de novo the director's or the director's designee's determination and order
377 within 30 days of the date the determination and order is issued.
378 (d) If the director or the director's designee receives no timely request for a hearing, the
379 determination and order issued by the director or the director's designee [
383 (6) In any adjudicative proceeding to review the director's or the director's designee's
384 determination that a prohibited employment practice has occurred, the division shall present the
385 factual and legal basis of [
386 (7) (a) Prior to commencement of an evidentiary hearing[
387 (i) the party filing the request for agency action may reasonably and fairly amend any
389 (ii) the respondent may amend its answer. [
390 (b) An amendment permitted under this Subsection (7) may be made:
391 (i) during or after a hearing [
392 (ii) only with permission of the presiding officer.
393 (8) (a) If, upon all the evidence at a hearing, the presiding officer finds that a
394 respondent has not engaged in a discriminatory or prohibited employment practice, the
395 presiding officer shall issue an order dismissing the request for agency action containing the
396 allegation of a discriminatory or prohibited employment practice.
397 (b) The presiding officer may order that the respondent be reimbursed by the
398 complaining party for the respondent's attorneys' fees and costs.
399 (9) If upon all the evidence at the hearing, the presiding officer finds that a respondent
400 has engaged in a discriminatory or prohibited employment practice, the presiding officer shall
401 issue an order requiring the respondent to:
402 (a) cease any discriminatory or prohibited employment practice; and
403 (b) provide relief to the complaining party, including:
404 (i) reinstatement[
405 (ii) back pay and benefits[
406 (iii) attorneys' fees; and
407 (iv) costs.
408 (10) Conciliation between the parties is to be urged and facilitated at all stages of the
409 adjudicative process.
410 (11) (a) Either party may file with the Division of Adjudication a written request for
411 review before the commissioner or Appeals Board of the order issued by the presiding officer
412 in accordance with:
413 (i) Section 63-46b-12 ; and
414 (ii) Chapter 1, Part 3, Adjudicative Proceedings.
415 (b) If there is no timely request for review, the order issued by the presiding officer
416 becomes the final order of the commission.
417 (12) An order of the commission under Subsection (11)(a) is subject to judicial review
418 as provided in:
419 (a) Section 63-46b-16 ; and
420 (b) Chapter 1, Part 3, Adjudicative Proceedings.
421 (13) The commission shall have authority to make rules concerning procedures under
422 this chapter in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
423 (14) The commission and its staff may not divulge or make public any information
424 gained from any investigation, settlement negotiation, or proceeding before the commission
425 except as provided in Subsections (14)(a) through (d).
426 (a) Information used by the director or the director's designee in making any
427 determination may be provided to all interested parties for the purpose of preparation for and
428 participation in proceedings before the commission.
429 (b) General statistical information may be disclosed provided the identities of the
430 individuals or parties are not disclosed.
431 (c) Information may be disclosed for inspection by the attorney general or other legal
432 representatives of the state or the commission.
433 (d) Information may be disclosed for information and reporting requirements of the
434 federal government.
435 (15) The procedures contained in this section are the exclusive remedy under state law
436 for employment discrimination based upon:
437 (a) race[
438 (b) color[
439 (c) sex[
440 (d) retaliation[
441 (e) pregnancy, childbirth, or pregnancy-related conditions[
442 (f) age[
443 (g) religion[
444 (h) national origin[
445 (i) disability.
446 (16) (a) The commencement of an action under federal law for relief based upon any
447 act prohibited by this chapter bars the commencement or continuation of any adjudicative
448 proceeding before the commission in connection with the same claims under this chapter.
449 (b) The transfer of a request for agency action to the Equal Employment Opportunity
450 Commission in accordance with Subsection (1)(d) is considered the commencement of an
451 action under federal law for purposes of Subsection (16)(a).
452 (c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair the
453 exclusive remedy provision set forth in Subsection (15).
454 Section 5. Section 34A-5-108 is amended to read:
455 34A-5-108. Judicial enforcement of division findings.
456 (1) The commission or the attorney general at the request of the commission shall
457 commence an action under Section 63-46b-19 for civil enforcement of a final order of the
458 commission issued under Subsection 34A-5-107 [
459 (a) the order finds that there is reasonable cause to believe that a respondent has
460 engaged or is engaging in discriminatory or prohibited employment practices made unlawful by
461 this chapter;
462 (b) counsel to the commission or the attorney general determines after reasonable
463 inquiry that the order is well grounded in fact and is warranted by existing law;
464 (c) the respondent has not received an order of automatic stay or discharge from the
465 United States Bankruptcy Court; and
466 (d) (i) the commission has not accepted a conciliation agreement to which the
467 aggrieved party and respondent are parties; or
468 (ii) the respondent has not conciliated or complied with the final order of the
469 commission within 30 days from the date the order is issued.
470 (2) If the respondent seeks judicial review of the final order under Section 63-46b-16 ,
471 pursuant to Section 63-46b-18 the commission may stay seeking civil enforcement pending the
472 completion of the judicial review.
473 Section 6. Section 67-19-4 is amended to read:
474 67-19-4. Discriminatory or prohibited employment practices.
475 The state, its officers, and employees shall be governed by the provisions of Section
476 34A-5-106 of the Utah Antidiscrimination Act concerning discriminatory or [
477 employment practices.
Legislative Review Note
as of 1-15-03 1:39 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
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