Representative James A. Dunnigan proposes the following substitute bill:


1     
UTAH ANTIDISCRIMINATION ACT AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: James A. Dunnigan

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9          This bill amends the Utah Antidiscrimination Act and the Utah Administrative
10     Procedures Act.
11     Highlighted Provisions:
12          This bill:
13          ▸     removes a provision relating to the Utah Labor Commission Antidiscrimination and
14     Labor Division (UALD) holding hearings upon receiving complaints;
15          ▸     grants the UALD subpoena power during an investigation;
16          ▸     permits the Career Service Review Office to request an investigation in certain
17     circumstances;
18          ▸     instructs the UALD to assign a mediator to offer mediation services between parties
19     before an investigation begins;
20          ▸     removes language instructing mediators to attempt a settlement between parties by
21     conciliation and persuasion;
22          ▸      requires notification to parties regarding the right to request an evidentiary hearing;
23          ▸     excludes the issuance of a determination and order from the Utah Administrative
24     Procedures Act;
25          ▸     removes a provision requiring a finding before an investigation begins; and
26          ▸     makes technical changes.
27     Money Appropriated in this Bill:
28          None
29     Other Special Clauses:
30          None
31     Utah Code Sections Affected:
32     AMENDS:
33          34A-5-102.5, as enacted by Laws of Utah 2015, Chapter 13
34          34A-5-104, as last amended by Laws of Utah 2017, Chapter 18
35          34A-5-107, as last amended by Laws of Utah 2016, Chapter 132
36          34A-5-108, as last amended by Laws of Utah 2008, Chapter 382
37          63G-4-102, as last amended by Laws of Utah 2015, Chapter 441
38     

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 34A-5-102.5 is amended to read:
41          34A-5-102.5. Supremacy over local regulations -- No special class created for
42     other purposes.
43          (1) [Consistent with the requirements of Subsection 34A-5-107(15), this] This chapter
44     supersedes and preempts any ordinance, regulation, standard, or other legal action by a local
45     government entity, a state entity, or the governing body of a political subdivision that relates to
46     the prohibition of discrimination in employment.
47          (2) This chapter shall not be construed to create a special or protected class for any
48     purpose other than employment.
49          Section 2. Section 34A-5-104 is amended to read:
50          34A-5-104. Powers.
51          (1) (a) The commission has jurisdiction over the subject of employment practices and
52     discrimination made unlawful by this chapter.
53          (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and
54     for the enforcement of this chapter.
55          (2) The division may:
56          (a) appoint and prescribe the duties of an investigator, other employee, or agent of the
57     commission that the commission considers necessary for the enforcement of this chapter;
58          (b) receive, reject, investigate, and pass upon complaints alleging:
59          (i) discrimination in:
60          (A) employment;
61          (B) an apprenticeship program;
62          (C) an on-the-job training program; or
63          (D) a vocational school; or
64          (ii) the existence of a discriminatory or prohibited employment practice by:
65          (A) a person;
66          (B) an employer;
67          (C) an employment agency;
68          (D) a labor organization;
69          (E) an employee or member of an employment agency or labor organization;
70          (F) a joint apprenticeship committee; and
71          (G) a vocational school;
72          (c) investigate and study the existence, character, causes, and extent of discrimination
73     in employment, apprenticeship programs, on-the-job training programs, and vocational schools
74     in this state by:
75          (i) employers;
76          (ii) employment agencies;
77          (iii) labor organizations;
78          (iv) joint apprenticeship committees; and
79          (v) vocational schools;
80          (d) formulate plans for the elimination of discrimination by educational or other
81     means;
82          [(e) hold hearings upon complaint made against:]
83          [(i) a person;]
84          [(ii) an employer;]
85          [(iii) an employment agency;]
86          [(iv) a labor organization;]
87          [(v) an employee or member of an employment agency or labor organization;]
88          [(vi) a joint apprenticeship committee; or]
89          [(vii) a vocational school;]
90          [(f)] (e) issue publications and reports of investigations and research that:
91          (i) promote good will among the various racial, religious, and ethnic groups of the
92     state; and
93          (ii) minimize or eliminate discrimination in employment because of race, color, sex,
94     religion, national origin, age, disability, sexual orientation, or gender identity;
95          [(g)] (f) prepare and transmit to the governor, at least once each year, reports
96     describing:
97          (i) [the division's] division proceedings[,] and investigations[, and hearings];
98          [(ii) the outcome of those hearings;]
99          [(iii)] (ii) decisions the division renders; and
100          [(iv) the] (iii) other work performed by the division;
101          [(h)] (g) recommend policies to the governor, and submit recommendation to
102     employers, employment agencies, and labor organizations to implement those policies;
103          [(i)] (h) recommend legislation to the governor that the division considers necessary
104     concerning discrimination because of:
105          (i) race;
106          (ii) sex;
107          (iii) color;
108          (iv) national origin;
109          (v) religion;
110          (vi) age;
111          (vii) disability;
112          (viii) sexual orientation; or
113          (ix) gender identity; and
114          [(j)] (i) within the limits of appropriations made for [its] the division's operation,
115     cooperate with other agencies or organizations, both public and private, in the planning and
116     conducting of educational programs designed to eliminate discriminatory practices prohibited
117     under this chapter.
118          (3) [The] In addition to processing complaints made in accordance with this chapter,
119     the division shall investigate an alleged discriminatory practice involving an officer or
120     employee of state government [if] when requested [to do so] by the Career Service Review
121     Office.
122          (4) (a) In [a hearing] an investigation held under this chapter, the division may
123     subpoena a person to compel the person to:
124          (i) [subpoena witnesses and compel their attendance at the hearing;] cooperate and
125     participate in an interview; or
126          [(ii) administer oaths and take the testimony of a person under oath; and]
127          [(iii)] (ii) [compel a person to] produce for examination a book, paper, or other
128     information relating to the matters raised by the complaint.
129          [(b) The division director or a hearing examiner appointed by the division director may
130     conduct a hearing.]
131          [(c)] (b) If a [witness] person fails or refuses to obey a subpoena issued by the division,
132     the division may petition the district court to enforce the subpoena.
133          [(d)] (c) If a [witness] person asserts a privilege against self-incrimination, testimony
134     and evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of
135     Immunity.
136          (5) In 2018, before November 1, the division shall submit, in accordance with Section
137     68-3-14, a written report to the Business and Labor Interim Committee on the effectiveness of
138     the commission and state law in addressing discrimination in matters of compensation.
139          Section 3. Section 34A-5-107 is amended to read:
140          34A-5-107. Procedure for aggrieved person to file claim -- Investigations --
141     Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.
142          (1) (a) A person claiming to be aggrieved by a discriminatory or prohibited
143     employment practice may, or that person's attorney or agent may, make, sign, and file with the
144     division a request for agency action.
145          (b) A request for agency action shall be verified under oath or affirmation.
146          (c) A request for agency action made under this section shall be filed within 180 days
147     after the alleged discriminatory or prohibited employment practice occurs.
148          (d) The division may transfer a request for agency action filed with the division
149     pursuant to this section to the federal Equal Employment Opportunity Commission in
150     accordance with a work-share agreement that is:
151          (i) between the division and the Equal Employment Opportunity Commission; and
152          (ii) in effect on the day on which the request for agency action is transferred.
153          (2) An employer, labor organization, joint apprenticeship committee, or vocational
154     school who has an employee or member who refuses or threatens to refuse to comply with this
155     chapter may file with the division a request for agency action asking the division for assistance
156     to obtain the employee's or member's compliance by conciliation or other remedial action.
157          (3) (a) Before [a hearing is set or held as part of any adjudicative proceeding] an
158     investigation begins into allegations of discriminatory or prohibited employment practice, the
159     division shall promptly assign [an investigator to attempt a settlement] a mediator to offer
160     mediation services between the parties by conference[, conciliation, or persuasion].
161          (b) (i) If mediation services are refused or no settlement is reached, [the] the division
162     shall promptly assign an investigator.
163          (ii) The investigator shall make a prompt impartial investigation of all allegations made
164     in the request for agency action.
165          (c) The division and [its] the division's staff, agents, and employees[: (i)] shall conduct
166     every investigation in fairness to all parties and agencies involved[; and].
167          [(ii) may not attempt a settlement between the parties if it is clear that no
168     discriminatory or prohibited employment practice has occurred.]
169          (d) An aggrieved party may withdraw the request for agency action prior to the
170     issuance of a final order.
171          (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator
172     uncovers insufficient evidence during the investigation to support the allegations of a
173     discriminatory or prohibited employment practice set out in the request for agency action, the
174     investigator shall formally report these findings to the director or the director's designee.
175          (b) (i) Upon receipt of the investigator's report described in Subsection (4)(a), the
176     director or the director's designee may issue a determination and order for dismissal of the
177     adjudicative proceeding.
178          (ii) A determination and order issued under this Subsection (4)(b) shall include a
179     notice:
180          (A) of the right to request an evidentiary hearing under Subsection (4)(c); and
181          (B) that failure to request an evidentiary hearing under Subsection (4)(c) will result in
182     the determination and order becoming final, in accordance with Subsection (4)(d).
183          (c) A party may make a written request to the Division of Adjudication for an
184     evidentiary hearing to review de novo the director's or the director's designee's determination
185     and order within 30 days [of the date] from the day on which the determination and order for
186     dismissal is issued.
187          (d) If the director or the director's designee receives no timely request for a hearing, the
188     determination and order issued by the director or the director's designee becomes the final order
189     of the commission.
190          (5) (a) If the initial attempts at settlement are unsuccessful and the investigator
191     uncovers sufficient evidence during the investigation to support the allegations of a
192     discriminatory or prohibited employment practice set out in the request for agency action, the
193     investigator shall formally report these findings to the director or the director's designee.
194          (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the
195     director or the director's designee may issue a determination and order based on the
196     investigator's report.
197          (ii) A determination and order issued under this Subsection (5)(b) shall:
198          (A) direct the respondent to cease any discriminatory or prohibited employment
199     practice; [and]
200          (B) provide relief to the aggrieved party as the director or the director's designee
201     determines is appropriate[.];
202          (C) include a notice of the right to request an evidentiary hearing under Subsection
203     (5)(c); and
204          (D) include a notice that failure to request an evidentiary hearing under Subsection
205     (5)(c) will result in the determination and order becoming final, in accordance with Subsection
206     (5)(d).
207          (c) A party may file a written request to the Division of Adjudication for an evidentiary
208     hearing to review de novo the director's or the director's designee's determination and order
209     within 30 days [of the date] after the day on which the determination and order is issued.
210          (d) If the director or the director's designee receives no timely request for a hearing, the
211     determination and order issued by the director or the director's designee in accordance with
212     Subsection (5)(b) becomes the final order of the commission.
213          (6) In an adjudicative proceeding to review the director's or the director's designee's
214     determination that a prohibited employment practice has occurred, the division shall present the
215     factual and legal basis of the determination [or] and order issued under Subsection (5).
216          [(7) (a) Before the commencement of an evidentiary hearing:]
217          [(i) the party filing the request for agency action may reasonably and fairly amend any
218     allegation; and]
219          [(ii) the respondent may amend its answer.]
220          [(b) An amendment permitted under this Subsection (7) may be made:]
221          [(i) during or after a hearing; and]
222          [(ii) only with permission of the presiding officer.]
223          [(8)] (7) (a) If, upon reviewing all the evidence at a hearing, the presiding officer finds
224     that a respondent has not engaged in a discriminatory or prohibited employment practice, the
225     presiding officer shall issue an order dismissing the request for agency action containing the
226     allegation of a discriminatory or prohibited employment practice.
227          (b) The presiding officer may order that the respondent be reimbursed by the
228     complaining party for the respondent's [attorneys'] attorney fees and costs.
229          [(9)] (8) If, upon reviewing all the evidence at the hearing, the presiding officer finds
230     that a respondent has engaged in a discriminatory or prohibited employment practice, the
231     presiding officer shall issue an order requiring the respondent to:
232          (a) cease any discriminatory or prohibited employment practice;
233          (b) provide relief to the complaining party, including:
234          (i) reinstatement;
235          (ii) back pay and benefits;
236          (iii) attorney fees; and
237          (iv) costs.
238          [(10)] (9) If a discriminatory practice described in Subsection [(9)] (8) includes
239     discrimination in matters of compensation, the presiding officer may provide, to the
240     complaining party, in addition to the amount available to the complaining party under
241     Subsection [(9)] (8)(b), an additional amount equal to the amount of back pay available to the
242     complaining party under Subsection [(9)] (8)(b)(ii) unless a respondent shows that:
243          (a) the act or omission that gave rise to the order was in good faith; and
244          (b) the respondent had reasonable grounds to believe that the act or omission was not
245     discrimination in matters of compensation under this chapter.
246          [(11)] (10) Conciliation between the parties is to be urged and facilitated at all stages of
247     the adjudicative process.
248          [(12)] (11) (a) Either party may file with the Division of Adjudication a written request
249     for review before the commissioner or Appeals Board of the order issued by the presiding
250     officer in accordance with:
251          (i) Section 63G-4-301; and
252          (ii) Chapter 1, Part 3, Adjudicative Proceedings.
253          (b) If there is no timely request for review, the order issued by the presiding officer
254     becomes the final order of the commission.
255          [(13)] (12) An order of the commission under Subsection [(12)] (11)(a) is subject to
256     judicial review as provided in:
257          (a) Section 63G-4-403; and
258          (b) Chapter 1, Part 3, Adjudicative Proceedings.
259          [(14)] (13) The commission may make rules concerning procedures under this chapter
260     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
261          [(15)] (14) The commission and its staff may not divulge or make public information
262     gained from an investigation, settlement negotiation, or proceeding before the commission
263     except as provided in Subsections [(15)] (14)(a) through (d).
264          (a) Information used by the director or the director's designee in making a
265     determination may be provided to all interested parties for the purpose of preparation for and
266     participation in proceedings before the commission.
267          (b) General statistical information may be disclosed provided the identities of the
268     individuals or parties are not disclosed.
269          (c) Information may be disclosed for inspection by the attorney general or other legal
270     representatives of the state or the commission.
271          (d) Information may be disclosed for information and reporting requirements of the
272     federal government.
273          [(16)] (15) The procedures contained in this section are the exclusive remedy under
274     state law for employment discrimination based upon:
275          (a) race;
276          (b) color;
277          (c) sex;
278          (d) retaliation;
279          (e) pregnancy, childbirth, or pregnancy-related conditions;
280          (f) age;
281          (g) religion;
282          (h) national origin;
283          (i) disability;
284          (j) sexual orientation; or
285          (k) gender identity.
286          [(17)] (16) (a) The commencement of an action under federal law for relief based upon
287     an act prohibited by this chapter bars the commencement or continuation of an adjudicative
288     proceeding before the commission in connection with the same claim under this chapter.
289          (b) The transfer of a request for agency action to the Equal Employment Opportunity
290     Commission in accordance with Subsection (1)(d) is considered the commencement of an
291     action under federal law for purposes of Subsection [(17)] (16)(a).
292          (c) Nothing in this Subsection [(17)] (16) is intended to alter, amend, modify, or impair
293     the exclusive remedy provision set forth in Subsection [(16)] (15).
294          Section 4. Section 34A-5-108 is amended to read:
295          34A-5-108. Judicial enforcement of division findings.
296          (1) The commission or the attorney general at the request of the commission shall
297     commence an action under Section 63G-4-501 for civil enforcement of a final order of the
298     commission issued under [Subsection] Section 34A-5-107[(11)] if:
299          (a) the order finds that there is reasonable cause to believe that a respondent has
300     engaged or is engaging in discriminatory or prohibited employment practices made unlawful by
301     this chapter;
302          (b) counsel to the commission or the attorney general determines after reasonable
303     inquiry that the order is well grounded in fact and is warranted by existing law;
304          (c) the respondent has not received an order of automatic stay or discharge from the
305     United States Bankruptcy Court; and
306          (d) (i) the commission has not accepted a conciliation agreement to which the
307     aggrieved party and respondent are parties; or
308          (ii) the respondent has not conciliated or complied with the final order of the
309     commission within 30 days from the date the order is issued.
310          (2) If the respondent seeks judicial review of the final order under Section 63G-4-403,
311     pursuant to Section 63G-4-405 the commission may stay seeking civil enforcement pending the
312     completion of the judicial review.
313          Section 5. Section 63G-4-102 is amended to read:
314          63G-4-102. Scope and applicability of chapter.
315          (1) Except as set forth in Subsection (2), and except as otherwise provided by a statute
316     superseding provisions of this chapter by explicit reference to this chapter, the provisions of
317     this chapter apply to every agency of the state and govern:
318          (a) state agency action that determines the legal rights, duties, privileges, immunities,
319     or other legal interests of an identifiable person, including agency action to grant, deny, revoke,
320     suspend, modify, annul, withdraw, or amend an authority, right, or license; and
321          (b) judicial review of the action.
322          (2) This chapter does not govern:
323          (a) the procedure for making agency rules, or judicial review of the procedure or rules;
324          (b) the issuance of a notice of a deficiency in the payment of a tax, the decision to
325     waive a penalty or interest on taxes, the imposition of and penalty or interest on taxes, or the
326     issuance of a tax assessment, except that this chapter governs an agency action commenced by
327     a taxpayer or by another person authorized by law to contest the validity or correctness of the
328     action;
329          (c) state agency action relating to extradition, to the granting of a pardon or parole, a
330     commutation or termination of a sentence, or to the rescission, termination, or revocation of
331     parole or probation, to the discipline of, resolution of a grievance of, supervision of,
332     confinement of, or the treatment of an inmate or resident of a correctional facility, the Utah
333     State Hospital, the Utah State Developmental Center, or a person in the custody or jurisdiction
334     of the Division of Substance Abuse and Mental Health, or a person on probation or parole, or
335     judicial review of the action;
336          (d) state agency action to evaluate, discipline, employ, transfer, reassign, or promote a
337     student or teacher in a school or educational institution, or judicial review of the action;
338          (e) an application for employment and internal personnel action within an agency
339     concerning its own employees, or judicial review of the action;
340          (f) the issuance of a citation or assessment under Title 34A, Chapter 6, Utah
341     Occupational Safety and Health Act, and Title 58, Occupations and Professions, except that
342     this chapter governs an agency action commenced by the employer, licensee, or other person
343     authorized by law to contest the validity or correctness of the citation or assessment;
344          (g) state agency action relating to management of state funds, the management and
345     disposal of school and institutional trust land assets, and contracts for the purchase or sale of
346     products, real property, supplies, goods, or services by or for the state, or by or for an agency of
347     the state, except as provided in those contracts, or judicial review of the action;
348          (h) state agency action under Title 7, Chapter 1, Part 3, Powers and Duties of
349     Commissioner of Financial Institutions, Title 7, Chapter 2, Possession of Depository Institution
350     by Commissioner, Title 7, Chapter 19, Acquisition of Failing Depository Institutions or
351     Holding Companies, and Title 63G, Chapter 7, Governmental Immunity Act of Utah, or
352     judicial review of the action;
353          (i) the initial determination of a person's eligibility for unemployment benefits, the
354     initial determination of a person's eligibility for benefits under Title 34A, Chapter 2, Workers'
355     Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the initial
356     determination of a person's unemployment tax liability;
357          (j) state agency action relating to the distribution or award of a monetary grant to or
358     between governmental units, or for research, development, or the arts, or judicial review of the
359     action;
360          (k) the issuance of a notice of violation or order under Title 26, Chapter 8a, Utah
361     Emergency Medical Services System Act, Title 19, Chapter 2, Air Conservation Act, Title 19,
362     Chapter 3, Radiation Control Act, Title 19, Chapter 4, Safe Drinking Water Act, Title 19,
363     Chapter 5, Water Quality Act, Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act,
364     Title 19, Chapter 6, Part 4, Underground Storage Tank Act, or Title 19, Chapter 6, Part 7, Used
365     Oil Management Act, or Title 19, Chapter 6, Part 10, Mercury Switch Removal Act, except
366     that this chapter governs an agency action commenced by a person authorized by law to contest
367     the validity or correctness of the notice or order;
368          (l) state agency action, to the extent required by federal statute or regulation, to be
369     conducted according to federal procedures;
370          (m) the initial determination of a person's eligibility for government or public
371     assistance benefits;
372          (n) state agency action relating to wildlife licenses, permits, tags, and certificates of
373     registration;
374          (o) a license for use of state recreational facilities;
375          (p) state agency action under Title 63G, Chapter 2, Government Records Access and
376     Management Act, except as provided in Section 63G-2-603;
377          (q) state agency action relating to the collection of water commissioner fees and
378     delinquency penalties, or judicial review of the action;
379          (r) state agency action relating to the installation, maintenance, and repair of headgates,
380     caps, values, or other water controlling works and weirs, flumes, meters, or other water
381     measuring devices, or judicial review of the action;
382          (s) the issuance and enforcement of an initial order under Section 73-2-25;
383          (t) (i) a hearing conducted by the Division of Securities under Section 61-1-11.1; and
384          (ii) an action taken by the Division of Securities under a hearing conducted under
385     Section 61-1-11.1, including a determination regarding the fairness of an issuance or exchange
386     of securities described in Subsection 61-1-11.1(1); [and]
387          (u) state agency action relating to water well driller licenses, water well drilling
388     permits, water well driller registration, or water well drilling construction standards, or judicial
389     review of the action[.]; or
390          (v) the issuance of a determination and order under Title 34A, Chapter 5, Utah
391     Antidiscrimination Act.
392          (3) This chapter does not affect a legal remedy otherwise available to:
393          (a) compel an agency to take action; or
394          (b) challenge an agency's rule.
395          (4) This chapter does not preclude an agency, prior to the beginning of an adjudicative
396     proceeding, or the presiding officer during an adjudicative proceeding from:
397          (a) requesting or ordering a conference with parties and interested persons to:
398          (i) encourage settlement;
399          (ii) clarify the issues;
400          (iii) simplify the evidence;
401          (iv) facilitate discovery; or
402          (v) expedite the proceeding; or
403          (b) granting a timely motion to dismiss or for summary judgment if the requirements of
404     Rule 12(b) or Rule 56 of the Utah Rules of Civil Procedure are met by the moving party,
405     except to the extent that the requirements of those rules are modified by this chapter.
406          (5) (a) A declaratory proceeding authorized by Section 63G-4-503 is not governed by
407     this chapter, except as explicitly provided in that section.
408          (b) Judicial review of a declaratory proceeding authorized by Section 63G-4-503 is
409     governed by this chapter.
410          (6) This chapter does not preclude an agency from enacting a rule affecting or
411     governing an adjudicative proceeding or from following the rule, if the rule is enacted
412     according to the procedures outlined in Title 63G, Chapter 3, Utah Administrative Rulemaking
413     Act, and if the rule conforms to the requirements of this chapter.
414          (7) (a) If the attorney general issues a written determination that a provision of this
415     chapter would result in the denial of funds or services to an agency of the state from the federal
416     government, the applicability of the provision to that agency shall be suspended to the extent
417     necessary to prevent the denial.
418          (b) The attorney general shall report the suspension to the Legislature at its next
419     session.
420          (8) Nothing in this chapter may be interpreted to provide an independent basis for
421     jurisdiction to review final agency action.
422          (9) Nothing in this chapter may be interpreted to restrict a presiding officer, for good
423     cause shown, from lengthening or shortening a time period prescribed in this chapter, except
424     the time period established for judicial review.
425          (10) Notwithstanding any other provision of this section, this chapter does not apply to
426     a special adjudicative proceeding, as defined in Section 19-1-301.5, except to the extent
427     expressly provided in Section 19-1-301.5.