1     
WORKPLACE DISCRIMINATION AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Mark A. Wheatley

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to workplace discrimination.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the remedies available in an administrative action based on prohibited
13     employment practices;
14          ▸     provides for civil actions seeking relief from discriminatory or prohibited
15     employment practices;
16          ▸     bars further agency action if a civil action is commenced;
17          ▸     removes language related to exclusive remedy; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          34A-5-102.5, as enacted by Laws of Utah 2015, Chapter 13
26          34A-5-107, as last amended by Laws of Utah 2016, Chapter 132
27          34A-5-108, as last amended by Laws of Utah 2008, Chapter 382
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 34A-5-102.5 is amended to read:
31          34A-5-102.5. Supremacy over local regulations -- No special class created for
32     other purposes.
33          (1) Consistent with the requirements of Subsection 34A-5-107[(15)](14), this chapter
34     supersedes and preempts any ordinance, regulation, standard, or other legal action by a local
35     government entity, a state entity, or the governing body of a political subdivision that relates to
36     the prohibition of discrimination in employment.
37          (2) This chapter shall not be construed to create a special or protected class for any
38     purpose other than employment.
39          Section 2. Section 34A-5-107 is amended to read:
40          34A-5-107. Procedure for aggrieved person to file claim -- Investigations --
41     Adjudicative proceedings -- Settlement -- Reconsideration -- Determination -- Civil
42     Action.
43          (1) (a) A person claiming to be aggrieved by a discriminatory or prohibited
44     employment practice may, or that person's attorney or agent may, make, sign, and file with the
45     division a request for agency action.
46          (b) A request for agency action shall be verified under oath or affirmation.
47          (c) A request for agency action made under this section shall be filed within 180 days
48     after the alleged discriminatory or prohibited employment practice occurs.
49          (d) The division may transfer a request for agency action filed with the division
50     pursuant to this section to the federal Equal Employment Opportunity Commission in
51     accordance with a work-share agreement that is:
52          (i) between the division and the Equal Employment Opportunity Commission; and
53          (ii) in effect on the day on which the request for agency action is transferred.
54          (2) An employer, labor organization, joint apprenticeship committee, or vocational
55     school who has an employee or member who refuses or threatens to refuse to comply with this
56     chapter may file with the division a request for agency action asking the division for assistance
57     to obtain the employee's or member's compliance by conciliation or other remedial action.
58          (3) (a) Before a hearing is set or held as part of [any] an adjudicative proceeding, the
59     division shall promptly assign an investigator to attempt a settlement between the parties by
60     conference, conciliation, or persuasion.
61          (b) If no settlement is reached, the investigator shall make a prompt impartial
62     investigation of all allegations made in the request for agency action.
63          (c) The division and its staff, agents, and employees:
64          (i) shall conduct [every] an investigation in fairness to [all] the parties and agencies
65     involved; and
66          (ii) may not attempt a settlement between the parties if it is clear that no discriminatory
67     or prohibited employment practice has occurred.
68          (d) An aggrieved party may withdraw the request for agency action [prior to] before the
69     issuance of a final order.
70          (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator
71     uncovers insufficient evidence during the investigation to support the allegations of a
72     discriminatory or prohibited employment practice set out in the request for agency action, the
73     investigator shall formally report these findings to the director or the director's designee.
74          (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director
75     or the director's designee may issue a determination and order for dismissal of the adjudicative
76     proceeding.
77          (c) A party may make a written request to the Division of Adjudication for an
78     evidentiary hearing to review de novo the director's or the director's designee's determination
79     and order within 30 days of the date the determination and order for dismissal is issued.
80          (d) If the director or the director's designee receives no timely request for a hearing, the
81     determination and order issued by the director or the director's designee becomes the final order
82     of the commission.
83          (5) (a) If the initial attempts at settlement are unsuccessful and the investigator
84     uncovers sufficient evidence during the investigation to support the allegations of a
85     discriminatory or prohibited employment practice set out in the request for agency action, the
86     investigator shall formally report these findings to the director or the director's designee.
87          (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the
88     director or the director's designee may issue a determination and order based on the
89     investigator's report.
90          (ii) A determination and order issued under this Subsection (5)(b) shall:
91          (A) direct the respondent to cease any discriminatory or prohibited employment
92     practice; and
93          (B) provide relief to the aggrieved party as the director or the director's designee
94     determines is appropriate.
95          (c) A party may file a written request to the Division of Adjudication for an evidentiary
96     hearing to review de novo the director's or the director's designee's determination and order
97     within 30 days of the date the determination and order is issued.
98          (d) If the director or the director's designee receives no timely request for a hearing, the
99     determination and order issued by the director or the director's designee in accordance with
100     Subsection (5)(b) becomes the final order of the commission.
101          (6) In an adjudicative proceeding to review the director's or the director's designee's
102     determination that a prohibited employment practice has occurred, the division shall present the
103     factual and legal basis of the determination [or] and order issued under Subsection (5).
104          (7) (a) Before [the] commencement of an evidentiary hearing:
105          (i) the party filing the request for agency action may reasonably and fairly amend any
106     allegation; and
107          (ii) the respondent may amend its answer.
108          (b) An amendment permitted under this Subsection (7) may be made:
109          (i) during or after a hearing; and
110          (ii) only with permission of the presiding officer.
111          (8) (a) If, upon reviewing all the evidence at a hearing, the presiding officer finds that a
112     respondent has not engaged in a discriminatory or prohibited employment practice, the
113     presiding officer shall issue an order dismissing the request for agency action containing the
114     allegation of a discriminatory or prohibited employment practice.
115          (b) The presiding officer may order that the respondent be reimbursed by the
116     complaining party for the respondent's [attorneys'] attorney fees and costs.
117          (9) If, upon reviewing all the evidence at the hearing, the presiding officer finds that a
118     respondent has engaged in a discriminatory or prohibited employment practice, the presiding
119     officer shall issue an order requiring the respondent to:
120          (a) cease any discriminatory or prohibited employment practice;
121          (b) provide relief to the complaining party, including:
122          (i) reinstatement;
123          (ii) back pay and benefits;
124          (iii) compensatory and punitive damages in an amount not to exceed that available
125     under 42 U.S.C. Sec. 1981a;
126          [(iii)] (iv) attorney fees; and
127          [(iv)] (v) costs.
128          [(10) If a discriminatory practice described in Subsection (9) includes discrimination in
129     matters of compensation, the presiding officer may provide, to the complaining party, in
130     addition to the amount available to the complaining party under Subsection (9)(b), an
131     additional amount equal to the amount of back pay available to the complaining party under
132     Subsection (9)(b)(ii) unless a respondent shows that:]
133          [(a) the act or omission that gave rise to the order was in good faith; and]
134          [(b) the respondent had reasonable grounds to believe that the act or omission was not
135     discrimination in matters of compensation under this chapter.]
136          [(11)] (10) Conciliation between the parties is to be urged and facilitated at all stages of
137     the adjudicative process.
138          [(12)] (11) (a) Either party may file with the Division of Adjudication a written request
139     for review before the commissioner or Appeals Board of the order issued by the presiding
140     officer in accordance with:
141          (i) Section 63G-4-301; and
142          (ii) Chapter 1, Part 3, Adjudicative Proceedings.
143          (b) If there is no timely request for review, the order issued by the presiding officer
144     becomes the final order of the commission.
145          [(13)] (12) An order of the commission under Subsection [(12)] (11)(a) is subject to
146     judicial review as provided in:
147          (a) Section 63G-4-403; and
148          (b) Chapter 1, Part 3, Adjudicative Proceedings.
149          [(14)] (13) The commission may make rules concerning procedures under this chapter
150     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
151          [(15)] (14) The commission and its staff may not divulge or make public information
152     gained from an investigation, settlement negotiation, or proceeding before the commission
153     except as provided in Subsections [(15)] (14)(a) through (d).
154          (a) Information used by the director or the director's designee in making a
155     determination may be provided to [all] the interested parties for the purpose of preparation for
156     and participation in proceedings before the commission.
157          (b) General statistical information may be disclosed provided the identities of the
158     individuals or parties are not disclosed.
159          (c) Information may be disclosed for inspection by the attorney general or other legal
160     representatives of the state or the commission.
161          (d) Information may be disclosed for information and reporting requirements of the
162     federal government.
163          [(16) The procedures contained in this section are the exclusive remedy under state law
164     for employment discrimination based upon:]
165          [(a) race;]
166          [(b) color;]
167          [(c) sex;]
168          [(d) retaliation;]
169          [(e) pregnancy, childbirth, or pregnancy-related conditions;]
170          [(f) age;]
171          [(g) religion;]
172          [(h) national origin;]
173          [(i) disability;]
174          [(j) sexual orientation; or]
175          [(k) gender identity.]
176          (15) (a) A person claiming to be aggrieved by a prohibited employment practice may
177     request a state right to sue letter from the division after the person files with the division a
178     request for agency action under Subsection (1), but no later than the day on which the
179     commission issues a final order under this section.
180          (b) A person who obtains a state right to sue letter under Subsection (15)(a) may file a
181     civil action in state district court by no later than 90 days after the day on which the state right
182     to sue letter is issued by the division.
183          (c) The commencement of a civil action under this Subsection (15) seeking relief from
184     a prohibited employment practice bars the commencement or continuation of any proceeding
185     before the division or commission in connection with the same claim of a prohibited
186     employment practice under this chapter.
187          (d) If a court finds discriminatory or prohibited employment practices, the court may
188     order relief to the complaining party, including:
189          (i) reinstatement;
190          (ii) back pay and benefits;
191          (iii) compensatory and punitive damages in an amount not to exceed that available
192     under 42 U.S.C. Sec. 1981a;
193          (iv) attorney fees; and
194          (v) costs.
195          [(17)] (16) (a) The commencement of an action under federal law for relief based upon
196     [an] any act prohibited by this chapter bars the commencement or continuation of an
197     adjudicative proceeding before the commission in connection with the same [claim] claims
198     under this chapter.
199          (b) The transfer of a request for agency action to the Equal Employment Opportunity
200     Commission in accordance with Subsection (1)(d) is considered the commencement of an
201     action under federal law for purposes of Subsection [(17)] (16)(a).
202          [(c) Nothing in this Subsection (17) is intended to alter, amend, modify, or impair the
203     exclusive remedy provision set forth in Subsection (16).]
204          Section 3. Section 34A-5-108 is amended to read:
205          34A-5-108. Judicial enforcement of division findings.
206          (1) The commission or the attorney general at the request of the commission shall
207     commence an action under Section 63G-4-501 for civil enforcement of a final order of the
208     commission issued under Subsection 34A-5-107[(11)](10) if:
209          (a) the order finds that there is reasonable cause to believe that a respondent has
210     engaged or is engaging in discriminatory or prohibited employment practices made unlawful by
211     this chapter;
212          (b) counsel to the commission or the attorney general determines after reasonable
213     inquiry that the order is well grounded in fact and is warranted by existing law;
214          (c) the respondent has not received an order of automatic stay or discharge from the
215     United States Bankruptcy Court; and
216          (d) (i) the commission has not accepted a conciliation agreement to which the
217     aggrieved party and respondent are parties; or
218          (ii) the respondent has not conciliated or complied with the final order of the
219     commission within 30 days from the date the order is issued.
220          (2) If the respondent seeks judicial review of the final order under Section 63G-4-403,
221     pursuant to Section 63G-4-405 the commission may stay seeking civil enforcement pending the
222     completion of the judicial review.




Legislative Review Note
Office of Legislative Research and General Counsel