1     
UTAH ANTIDISCRIMINATION ACT AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: James A. Dunnigan

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     Committee Note:
9          The Business and Labor Interim Committee recommended this bill.
10     General Description:
11          This bill amends the Utah Antidiscrimination Act.
12     Highlighted Provisions:
13          This bill:
14          ▸     removes a provision relating to the Utah Labor Commission Antidiscrimination and
15     Labor Division (UALD) holding hearings upon receiving complaints;
16          ▸     grants the UALD subpoena power during an investigation;
17          ▸     permits the Career Service Review Office to request an investigation in certain
18     circumstances;
19          ▸     instructs the UALD to assign a mediator to offer mediation services between parties
20     before an investigation begins;
21          ▸     removes language instructing mediators to attempt a settlement between parties by
22     conciliation and persuasion;
23          ▸     removes a provision requiring a finding before an investigation begins; and
24          ▸     makes technical changes.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:
28          None
29     Utah Code Sections Affected:
30     AMENDS:
31          34A-5-102.5, as enacted by Laws of Utah 2015, Chapter 13
32          34A-5-104, as last amended by Laws of Utah 2017, Chapter 18
33          34A-5-107, as last amended by Laws of Utah 2016, Chapter 132
34          34A-5-108, as last amended by Laws of Utah 2008, Chapter 382
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 34A-5-102.5 is amended to read:
38          34A-5-102.5. Supremacy over local regulations -- No special class created for
39     other purposes.
40          (1) [Consistent with the requirements of Subsection 34A-5-107(15), this] This chapter
41     supersedes and preempts any ordinance, regulation, standard, or other legal action by a local
42     government entity, a state entity, or the governing body of a political subdivision that relates to
43     the prohibition of discrimination in employment.
44          (2) This chapter shall not be construed to create a special or protected class for any
45     purpose other than employment.
46          Section 2. Section 34A-5-104 is amended to read:
47          34A-5-104. Powers.
48          (1) (a) The commission has jurisdiction over the subject of employment practices and
49     discrimination made unlawful by this chapter.
50          (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and
51     for the enforcement of this chapter.
52          (2) The division may:
53          (a) appoint and prescribe the duties of an investigator, other employee, or agent of the
54     commission that the commission considers necessary for the enforcement of this chapter;
55          (b) receive, reject, investigate, and pass upon complaints alleging:
56          (i) discrimination in:
57          (A) employment;
58          (B) an apprenticeship program;
59          (C) an on-the-job training program; or
60          (D) a vocational school; or
61          (ii) the existence of a discriminatory or prohibited employment practice by:
62          (A) a person;
63          (B) an employer;
64          (C) an employment agency;
65          (D) a labor organization;
66          (E) an employee or member of an employment agency or labor organization;
67          (F) a joint apprenticeship committee; and
68          (G) a vocational school;
69          (c) investigate and study the existence, character, causes, and extent of discrimination
70     in employment, apprenticeship programs, on-the-job training programs, and vocational schools
71     in this state by:
72          (i) employers;
73          (ii) employment agencies;
74          (iii) labor organizations;
75          (iv) joint apprenticeship committees; and
76          (v) vocational schools;
77          (d) formulate plans for the elimination of discrimination by educational or other
78     means;
79          [(e) hold hearings upon complaint made against:]
80          [(i) a person;]
81          [(ii) an employer;]
82          [(iii) an employment agency;]
83          [(iv) a labor organization;]
84          [(v) an employee or member of an employment agency or labor organization;]
85          [(vi) a joint apprenticeship committee; or]
86          [(vii) a vocational school;]
87          [(f)] (e) issue publications and reports of investigations and research that:
88          (i) promote good will among the various racial, religious, and ethnic groups of the
89     state; and
90          (ii) minimize or eliminate discrimination in employment because of race, color, sex,
91     religion, national origin, age, disability, sexual orientation, or gender identity;
92          [(g)] (f) prepare and transmit to the governor, at least once each year, reports
93     describing:
94          (i) [the division's] division proceedings[,] and investigations[, and hearings];
95          [(ii) the outcome of those hearings;]
96          [(iii)] (ii) decisions the division renders; and
97          [(iv) the] (iii) other work performed by the division;
98          [(h)] (g) recommend policies to the governor, and submit recommendation to
99     employers, employment agencies, and labor organizations to implement those policies;
100          [(i)] (h) recommend legislation to the governor that the division considers necessary
101     concerning discrimination because of:
102          (i) race;
103          (ii) sex;
104          (iii) color;
105          (iv) national origin;
106          (v) religion;
107          (vi) age;
108          (vii) disability;
109          (viii) sexual orientation; or
110          (ix) gender identity; and
111          [(j)] (i) within the limits of appropriations made for [its] the division's operation,
112     cooperate with other agencies or organizations, both public and private, in the planning and
113     conducting of educational programs designed to eliminate discriminatory practices prohibited
114     under this chapter.
115          (3) [The] In addition to processing complaints made in accordance with this chapter,
116     the division shall investigate an alleged discriminatory practice involving an officer or
117     employee of state government [if] when requested [to do so] by the Career Service Review
118     Office.
119          (4) (a) In [a hearing] an investigation held under this chapter, the division may
120     subpoena a person to compel the person to:
121          (i) [subpoena witnesses and compel their attendance at the hearing;] cooperate and
122     participate in an interview; or
123          [(ii) administer oaths and take the testimony of a person under oath; and]
124          [(iii)] (ii) [compel a person to] produce for examination a book, paper, or other
125     information relating to the matters raised by the complaint.
126          [(b) The division director or a hearing examiner appointed by the division director may
127     conduct a hearing.]
128          [(c)] (b) If a [witness] person fails or refuses to obey a subpoena issued by the division,
129     the division may petition the district court to enforce the subpoena.
130          [(d)] (c) If a [witness] person asserts a privilege against self-incrimination, testimony
131     and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of
132     Immunity.
133          (5) In 2018, before November 1, the division shall submit, in accordance with Section
134     68-3-14, a written report to the Business and Labor Interim Committee on the effectiveness of
135     the commission and state law in addressing discrimination in matters of compensation.
136          Section 3. Section 34A-5-107 is amended to read:
137          34A-5-107. Procedure for aggrieved person to file claim -- Investigations --
138     Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.
139          (1) (a) A person claiming to be aggrieved by a discriminatory or prohibited
140     employment practice may, or that person's attorney or agent may, make, sign, and file with the
141     division a request for agency action.
142          (b) A request for agency action shall be verified under oath or affirmation.
143          (c) A request for agency action made under this section shall be filed within 180 days
144     after the alleged discriminatory or prohibited employment practice occurs.
145          (d) The division may transfer a request for agency action filed with the division
146     pursuant to this section to the federal Equal Employment Opportunity Commission in
147     accordance with a work-share agreement that is:
148          (i) between the division and the Equal Employment Opportunity Commission; and
149          (ii) in effect on the day on which the request for agency action is transferred.
150          (2) An employer, labor organization, joint apprenticeship committee, or vocational
151     school who has an employee or member who refuses or threatens to refuse to comply with this
152     chapter may file with the division a request for agency action asking the division for assistance
153     to obtain the employee's or member's compliance by conciliation or other remedial action.
154          (3) (a) Before [a hearing is set or held as part of any adjudicative proceeding] an
155     investigation begins into allegations of discriminatory or prohibited employment practice, the
156     division shall promptly assign [an investigator to attempt a settlement] a mediator to offer
157     mediation services between the parties by conference[, conciliation, or persuasion].
158          (b) (i) If mediation services are refused or no settlement is reached, [the] the division
159     shall promptly assign an investigator.
160          (ii) The investigator shall make a prompt impartial investigation of all allegations made
161     in the request for agency action.
162          (c) The division and [its] the division's staff, agents, and employees[: (i)] shall conduct
163     every investigation in fairness to all parties and agencies involved[; and].
164          [(ii) may not attempt a settlement between the parties if it is clear that no
165     discriminatory or prohibited employment practice has occurred.]
166          (d) An aggrieved party may withdraw the request for agency action prior to the
167     issuance of a final order.
168          (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator
169     uncovers insufficient evidence during the investigation to support the allegations of a
170     discriminatory or prohibited employment practice set out in the request for agency action, the
171     investigator shall formally report these findings to the director or the director's designee.
172          (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director
173     or the director's designee may issue a determination and order for dismissal of the adjudicative
174     proceeding.
175          (c) A party may make a written request to the Division of Adjudication for an
176     evidentiary hearing to review de novo the director's or the director's designee's determination
177     and order within 30 days [of the date] from the day on which the determination and order for
178     dismissal is issued.
179          (d) If the director or the director's designee receives no timely request for a hearing, the
180     determination and order issued by the director or the director's designee becomes the final order
181     of the commission.
182          (5) (a) If the initial attempts at settlement are unsuccessful and the investigator
183     uncovers sufficient evidence during the investigation to support the allegations of a
184     discriminatory or prohibited employment practice set out in the request for agency action, the
185     investigator shall formally report these findings to the director or the director's designee.
186          (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the
187     director or the director's designee may issue a determination and order based on the
188     investigator's report.
189          (ii) A determination and order issued under this Subsection (5)(b) shall:
190          (A) direct the respondent to cease any discriminatory or prohibited employment
191     practice; and
192          (B) provide relief to the aggrieved party as the director or the director's designee
193     determines is appropriate.
194          (c) A party may file a written request to the Division of Adjudication for an evidentiary
195     hearing to review de novo the director's or the director's designee's determination and order
196     within 30 days [of the date] after the day on which the determination and order is issued.
197          (d) If the director or the director's designee receives no timely request for a hearing, the
198     determination and order issued by the director or the director's designee in accordance with
199     Subsection (5)(b) becomes the final order of the commission.
200          (6) In an adjudicative proceeding to review the director's or the director's designee's
201     determination that a prohibited employment practice has occurred, the division shall present the
202     factual and legal basis of the determination [or] and order issued under Subsection (5).
203          [(7) (a) Before the commencement of an evidentiary hearing:]
204          [(i) the party filing the request for agency action may reasonably and fairly amend any
205     allegation; and]
206          [(ii) the respondent may amend its answer.]
207          [(b) An amendment permitted under this Subsection (7) may be made:]
208          [(i) during or after a hearing; and]
209          [(ii) only with permission of the presiding officer.]
210          [(8)] (7) (a) If, upon reviewing all the evidence at a hearing, the presiding officer finds
211     that a respondent has not engaged in a discriminatory or prohibited employment practice, the
212     presiding officer shall issue an order dismissing the request for agency action containing the
213     allegation of a discriminatory or prohibited employment practice.
214          (b) The presiding officer may order that the respondent be reimbursed by the
215     complaining party for the respondent's [attorneys'] attorney fees and costs.
216          [(9)] (8) If, upon reviewing all the evidence at the hearing, the presiding officer finds
217     that a respondent has engaged in a discriminatory or prohibited employment practice, the
218     presiding officer shall issue an order requiring the respondent to:
219          (a) cease any discriminatory or prohibited employment practice;
220          (b) provide relief to the complaining party, including:
221          (i) reinstatement;
222          (ii) back pay and benefits;
223          (iii) attorney fees; and
224          (iv) costs.
225          [(10)] (9) If a discriminatory practice described in Subsection [(9)] (8) includes
226     discrimination in matters of compensation, the presiding officer may provide, to the
227     complaining party, in addition to the amount available to the complaining party under
228     Subsection [(9)] (8)(b), an additional amount equal to the amount of back pay available to the
229     complaining party under Subsection [(9)] (8)(b)(ii) unless a respondent shows that:
230          (a) the act or omission that gave rise to the order was in good faith; and
231          (b) the respondent had reasonable grounds to believe that the act or omission was not
232     discrimination in matters of compensation under this chapter.
233          [(11)] (10) Conciliation between the parties is to be urged and facilitated at all stages of
234     the adjudicative process.
235          [(12)] (11) (a) Either party may file with the Division of Adjudication a written request
236     for review before the commissioner or Appeals Board of the order issued by the presiding
237     officer in accordance with:
238          (i) Section 63G-4-301; and
239          (ii) Chapter 1, Part 3, Adjudicative Proceedings.
240          (b) If there is no timely request for review, the order issued by the presiding officer
241     becomes the final order of the commission.
242          [(13)] (12) An order of the commission under Subsection [(12)] (11)(a) is subject to
243     judicial review as provided in:
244          (a) Section 63G-4-403; and
245          (b) Chapter 1, Part 3, Adjudicative Proceedings.
246          [(14)] (13) The commission may make rules concerning procedures under this chapter
247     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
248          [(15)] (14) The commission and its staff may not divulge or make public information
249     gained from an investigation, settlement negotiation, or proceeding before the commission
250     except as provided in Subsections [(15)] (14)(a) through (d).
251          (a) Information used by the director or the director's designee in making a
252     determination may be provided to all interested parties for the purpose of preparation for and
253     participation in proceedings before the commission.
254          (b) General statistical information may be disclosed provided the identities of the
255     individuals or parties are not disclosed.
256          (c) Information may be disclosed for inspection by the attorney general or other legal
257     representatives of the state or the commission.
258          (d) Information may be disclosed for information and reporting requirements of the
259     federal government.
260          [(16)] (15) The procedures contained in this section are the exclusive remedy under
261     state law for employment discrimination based upon:
262          (a) race;
263          (b) color;
264          (c) sex;
265          (d) retaliation;
266          (e) pregnancy, childbirth, or pregnancy-related conditions;
267          (f) age;
268          (g) religion;
269          (h) national origin;
270          (i) disability;
271          (j) sexual orientation; or
272          (k) gender identity.
273          [(17)] (16) (a) The commencement of an action under federal law for relief based upon
274     an act prohibited by this chapter bars the commencement or continuation of an adjudicative
275     proceeding before the commission in connection with the same claim under this chapter.
276          (b) The transfer of a request for agency action to the Equal Employment Opportunity
277     Commission in accordance with Subsection (1)(d) is considered the commencement of an
278     action under federal law for purposes of Subsection [(17)] (16)(a).
279          (c) Nothing in this Subsection [(17)] (16) is intended to alter, amend, modify, or impair
280     the exclusive remedy provision set forth in Subsection [(16)] (15).
281          Section 4. Section 34A-5-108 is amended to read:
282          34A-5-108. Judicial enforcement of division findings.
283          (1) The commission or the attorney general at the request of the commission shall
284     commence an action under Section 63G-4-501 for civil enforcement of a final order of the
285     commission issued under Subsection 34A-5-107[(11)](8) if:
286          (a) the order finds that there is reasonable cause to believe that a respondent has
287     engaged or is engaging in discriminatory or prohibited employment practices made unlawful by
288     this chapter;
289          (b) counsel to the commission or the attorney general determines after reasonable
290     inquiry that the order is well grounded in fact and is warranted by existing law;
291          (c) the respondent has not received an order of automatic stay or discharge from the
292     United States Bankruptcy Court; and
293          (d) (i) the commission has not accepted a conciliation agreement to which the
294     aggrieved party and respondent are parties; or
295          (ii) the respondent has not conciliated or complied with the final order of the
296     commission within 30 days from the date the order is issued.
297          (2) If the respondent seeks judicial review of the final order under Section 63G-4-403,
298     pursuant to Section 63G-4-405 the commission may stay seeking civil enforcement pending the
299     completion of the judicial review.




Legislative Review Note
Office of Legislative Research and General Counsel