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7 LONG TITLE
8 General Description:
9 This bill amends the Utah Antidiscrimination Act.
10 Highlighted Provisions:
11 This bill:
12 ▸ amends the definition of employer;
13 ▸ requires certain claims involving employers with fewer than 15 employees to
14 proceed to an evidentiary hearing without a division investigation;
15 ▸ provides additional state remedies for claims involving employers with fewer than
16 15 employees; and
17 ▸ makes technical changes.
18 Money Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 34A-5-102, as last amended by Laws of Utah 2016, Chapters 330 and 370
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 is amended to read:
31 34A-5-102. Definitions -- Unincorporated entities -- Joint employers --
32 Franchisors.
33 (1) As used in this chapter:
34 (a) "Affiliate" means the same as that term is defined in Section 16-6a-102.
35 (b) "Apprenticeship" means a program for the training of apprentices including a
36 program providing the training of those persons defined as apprentices by Section 35A-6-102.
37 (c) "Bona fide occupational qualification" means a characteristic applying to an
38 employee that:
39 (i) is necessary to the operation; or
40 (ii) is the essence of the employee's employer's business.
41 (d) "Court" means:
42 (i) the district court in the judicial district of the state in which the asserted unfair
43 employment practice occurs; or
44 (ii) if the district court is not in session at that time, a judge of the court described in
45 Subsection (1)(d)(i).
46 (e) "Director" means the director of the division.
47 (f) "Disability" means a physical or mental disability as defined and covered by the
48 Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102.
49 (g) "Division" means the Division of Antidiscrimination and Labor.
50 (h) "Employee" means a person applying with or employed by an employer.
51 (i) (i) "Employer" means:
52 (A) the state;
53 (B) a political subdivision;
54 (C) a board, commission, department, institution, school district, trust, or agent of the
55 state or a political subdivision of the state; or
56 (D) a person employing [
57 day in each of 20 calendar weeks or more in the current or preceding calendar year.
58 (ii) "Employer" does not include:
59 (A) a religious organization, a religious corporation sole, a religious association, a
60 religious society, a religious educational institution, or a religious leader, when that individual
61 is acting in the capacity of a religious leader;
62 (B) any corporation or association constituting an affiliate, a wholly owned subsidiary,
63 or an agency of any religious organization, religious corporation sole, religious association, or
64 religious society; or
65 (C) the Boy Scouts of America or [
66 Scouts of America.
67 (j) "Employment agency" means a person:
68 (i) undertaking to procure employees or opportunities to work for any other person; or
69 (ii) holding the person out to be equipped to take an action described in Subsection
70 (1)(j)(i).
71 (k) "Federal executive agency" means an executive agency, as defined in 5 U.S.C. Sec.
72 105, of the federal government.
73 (l) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
74 (m) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
75 (n) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
76 (o) (i) "Gender identity" has the meaning provided in the Diagnostic and Statistical
77 Manual (DSM-5).
78 (ii) A person's gender identity can be shown by providing evidence, including[
79
80 assertion of the gender identity, or other evidence that the gender identity is sincerely held, part
81 of a person's core identity, and not being asserted for an improper purpose.
82 (p) "Joint apprenticeship committee" means an association of representatives of a labor
83 organization and an employer providing, coordinating, or controlling an apprentice training
84 program.
85 (q) "Labor organization" means an organization that exists for the purpose in whole or
86 in part of:
87 (i) collective bargaining;
88 (ii) dealing with employers concerning grievances, terms or conditions of employment;
89 or
90 (iii) other mutual aid or protection in connection with employment.
91 (r) "National origin" means the place of birth, domicile, or residence of an individual or
92 of an individual's ancestors.
93 (s) "On-the-job-training" means a program designed to instruct a person who, while
94 learning the particular job for which the person is receiving instruction:
95 (i) is also employed at that job; or
96 (ii) may be employed by the employer conducting the program during the course of the
97 program, or when the program is completed.
98 (t) "Person" means:
99 (i) one or more individuals, partnerships, associations, corporations, legal
100 representatives, trusts or trustees, or receivers;
101 (ii) the state; and
102 (iii) a political subdivision of the state.
103 (u) "Pregnancy, childbirth, or pregnancy-related conditions" includes breastfeeding or
104 medical conditions related to breastfeeding.
105 (v) "Presiding officer" means the same as that term is defined in Section 63G-4-103.
106 (w) "Prohibited employment practice" means a practice specified as discriminatory,
107 and therefore unlawful, in Section 34A-5-106.
108 (x) "Religious leader" means an individual who is associated with, and is an authorized
109 representative of, a religious organization or association or a religious corporation sole,
110 including a member of clergy, a minister, a pastor, a priest, a rabbi, an imam, or a spiritual
111 advisor.
112 (y) "Retaliate" means the taking of adverse action by an employer, employment agency,
113 labor organization, apprenticeship program, on-the-job training program, or vocational school
114 against one of its employees, applicants, or members because the employee, applicant, or
115 member:
116 (i) opposes an employment practice prohibited under this chapter; or
117 (ii) files charges, testifies, assists, or participates in any way in a proceeding,
118 investigation, or hearing under this chapter.
119 (z) "Sexual orientation" means an individual's actual or perceived orientation as
120 heterosexual, homosexual, or bisexual.
121 (aa) "Undue hardship" means an action that requires significant difficulty or expense
122 when considered in relation to factors such as the size of the entity, the entity's financial
123 resources, and the nature and structure of the entity's operation.
124 (bb) "Unincorporated entity" means an entity organized or doing business in the state
125 that is not:
126 (i) an individual;
127 (ii) a corporation; or
128 (iii) publicly traded.
129 (cc) "Vocational school" means a school or institution conducting a course of
130 instruction, training, or retraining to prepare individuals to follow an occupation or trade, or to
131 pursue a manual, technical, industrial, business, commercial, office, personal services, or other
132 nonprofessional occupations.
133 (2) (a) For purposes of this chapter, an unincorporated entity that is required to be
134 licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to
135 be the employer of each individual who, directly or indirectly, holds an ownership interest in
136 the unincorporated entity.
137 (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3,
138 Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption
139 under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that
140 the individual:
141 (i) is an active manager of the unincorporated entity;
142 (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated
143 entity; or
144 (iii) is not subject to supervision or control in the performance of work by:
145 (A) the unincorporated entity; or
146 (B) a person with whom the unincorporated entity contracts.
147 (c) As part of the rules made under Subsection (2)(b), the commission may define:
148 (i) "active manager";
149 (ii) "directly or indirectly holds at least an 8% ownership interest"; and
150 (iii) "subject to supervision or control in the performance of work."
151 (3) For purposes of determining whether two or more persons are considered joint
152 employers under this chapter, an administrative ruling of a federal executive agency may not be
153 considered a generally applicable law unless that administrative ruling is determined to be
154 generally applicable by a court of law, or adopted by statute or rule .
155 (4) (a) For purposes of this chapter, a franchisor is not considered to be an employer of:
156 (i) a franchisee; or
157 (ii) a franchisee's employee.
158 (b) With respect to a specific claim for relief under this chapter made by a franchisee or
159 a franchisee's employee, this Subsection (4) does not apply to a franchisor under a franchise
160 that exercises a type or degree of control over the franchisee or the franchisee's employee not
161 customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
162 and brand.
163 Section 2. Section 34A-5-102.5 is amended to read:
164 34A-5-102.5. Supremacy over local regulations -- No special class created for
165 other purposes.
166 (1) [
167 supersedes and preempts any ordinance, regulation, standard, or other legal action by a local
168 government entity, a state entity, or the governing body of a political subdivision that relates to
169 the prohibition of discrimination in employment.
170 (2) This chapter shall not be construed to create a special or protected class for any
171 purpose other than employment.
172 Section 3. Section 34A-5-107 is amended to read:
173 34A-5-107. Procedure for aggrieved person to file claim -- Investigations --
174 Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.
175 (1) (a) A person claiming to be aggrieved by a discriminatory or prohibited
176 employment practice may, or that person's attorney or agent may, make, sign, and file with the
177 division a request for agency action.
178 (b) A request for agency action shall be verified under oath or affirmation.
179 (c) A request for agency action made under this section shall be filed within 180 days
180 after the alleged discriminatory or prohibited employment practice occurs.
181 (d) The division may transfer a request for agency action [
182 15 or more employees files with the division pursuant to this section, to the federal Equal
183 Employment Opportunity Commission in accordance with a work-share agreement that is:
184 (i) between the division and the Equal Employment Opportunity Commission; and
185 (ii) in effect on the day on which the request for agency action is transferred.
186 (2) An employer, labor organization, joint apprenticeship committee, or vocational
187 school who has an employee or member who refuses or threatens to refuse to comply with this
188 chapter may file with the division a request for agency action asking the division for assistance
189 to obtain the employee's or member's compliance by conciliation or other remedial action.
190 (3) (a) Before a hearing is set or held as part of [
191 division shall promptly assign an investigator to attempt a settlement between the parties by
192 conference, conciliation, or persuasion.
193 (b) If no settlement is reached[
194 (i) fewer than 15 employees:
195 (A) the division shall notify the parties that attempts at settlement have ceased;
196 (B) the division may not conduct an investigation described under Subsection (3)(c);
197 (C) the director or director's designee may not issue a determination and order
198 described in Subsection (4) or (5); and
199 (D) the person requesting agency action may file a request for an evidentiary hearing
200 before a presiding officer, as described under Subsections (7) through (10), within 30 days after
201 the day on which the division notifies the parties in accordance with Subsection (3)(b)(i)(A); or
202 (ii) 15 or more employees, the investigator shall make a prompt impartial investigation
203 of all allegations made in the request for agency action.
204 (c) The division and its staff, agents, and employees:
205 (i) shall conduct [
206 involved; and
207 (ii) may not attempt a settlement between the parties if it is clear that no discriminatory
208 or prohibited employment practice has occurred.
209 (d) An aggrieved party may withdraw the request for agency action [
210 issuance of a final order.
211 (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator
212 uncovers insufficient evidence during the investigation to support the allegations of a
213 discriminatory or prohibited employment practice set out in the request for agency action, the
214 investigator shall formally report these findings to the director or the director's designee.
215 (b) Upon receipt of the investigator's report described in Subsection (4)(a), the director
216 or the director's designee may issue a determination and order for dismissal of the adjudicative
217 proceeding.
218 (c) A party may make a written request to the Division of Adjudication for an
219 evidentiary hearing to review de novo the director's or the director's designee's determination
220 and order within 30 days [
221 dismissal is issued.
222 (d) If the director or the director's designee receives no timely request for a hearing, the
223 determination and order issued by the director or the director's designee becomes the final order
224 of the commission.
225 (5) (a) If the initial attempts at settlement are unsuccessful and the investigator
226 uncovers sufficient evidence during the investigation to support the allegations of a
227 discriminatory or prohibited employment practice set out in the request for agency action, the
228 investigator shall formally report these findings to the director or the director's designee.
229 (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the
230 director or the director's designee may issue a determination and order based on the
231 investigator's report.
232 (ii) A determination and order issued under this Subsection (5)(b) shall:
233 (A) direct the respondent to cease any discriminatory or prohibited employment
234 practice; and
235 (B) provide relief to the aggrieved party as the director or the director's designee
236 determines is appropriate.
237 (c) A party may file a written request to the Division of Adjudication for an evidentiary
238 hearing to review de novo the director's or the director's designee's determination and order
239 within 30 days [
240 (d) If the director or the director's designee receives no timely request for a hearing, the
241 determination and order issued by the director or the director's designee in accordance with
242 Subsection (5)(b) becomes the final order of the commission.
243 (6) In an adjudicative proceeding to review the director's or the director's designee's
244 determination that a prohibited employment practice has occurred, the division shall present the
245 factual and legal basis of the determination [
246 (7) (a) Before [
247 (i) the party filing the request for agency action may reasonably and fairly amend any
248 allegation; and
249 (ii) the respondent may amend its answer.
250 (b) An amendment permitted under this Subsection (7) may be made:
251 (i) during or after a hearing; and
252 (ii) only with permission of the presiding officer.
253 (8) (a) If, upon reviewing all the evidence at a hearing, the presiding officer finds that a
254 respondent has not engaged in a discriminatory or prohibited employment practice, the
255 presiding officer shall issue an order dismissing the request for agency action containing the
256 allegation of a discriminatory or prohibited employment practice.
257 (b) The presiding officer may order that the respondent be reimbursed by the
258 complaining party for the respondent's [
259 (9) If, upon reviewing all the evidence at the hearing, the presiding officer finds that a
260 respondent has engaged in a discriminatory or prohibited employment practice, the presiding
261 officer shall issue an order requiring the respondent to:
262 (a) cease any discriminatory or prohibited employment practice; and
263 (b) provide relief to the complaining party, including:
264 [
265 (i) (A) reinstatement; or
266 (B) if the respondent employs fewer than 15 employees, front pay for up to two years;
267 (ii) back pay and benefits;
268 (iii) attorney fees; [
269 (iv) costs[
270 (v) if the respondent employs fewer than 15 employees, additional damages described
271 under 42 U.S.C. Sec. 1981a, in an amount not to exceed $25,000.
272 (10) If a discriminatory practice described in Subsection (9) includes discrimination in
273 matters of compensation, the presiding officer may provide, to the complaining party, in
274 addition to the amount available to the complaining party under Subsection (9)(b), an
275 additional amount equal to the amount of back pay available to the complaining party under
276 Subsection (9)(b)(ii) unless a respondent shows that:
277 (a) the act or omission that gave rise to the order was in good faith; and
278 (b) the respondent had reasonable grounds to believe that the act or omission was not
279 discrimination in matters of compensation under this chapter.
280 (11) Conciliation between the parties is to be urged and facilitated at all stages of the
281 adjudicative process.
282 (12) (a) Either party may file with the Division of Adjudication a written request for
283 review before the commissioner or Appeals Board of the order issued by the presiding officer
284 in accordance with:
285 (i) Section 63G-4-301; and
286 (ii) Chapter 1, Part 3, Adjudicative Proceedings.
287 (b) If there is no timely request for review, the order issued by the presiding officer
288 becomes the final order of the commission.
289 (13) An order of the commission under Subsection (12)(a) is subject to judicial review
290 as provided in:
291 (a) Section 63G-4-403; and
292 (b) Chapter 1, Part 3, Adjudicative Proceedings.
293 (14) The commission may make rules concerning procedures under this chapter in
294 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
295 (15) The commission and its staff may not divulge or make public information gained
296 from an investigation, settlement negotiation, or proceeding before the commission except as
297 provided in Subsections (15)(a) through (d).
298 (a) Information used by the director or the director's designee in making a
299 determination may be provided to all interested parties for the purpose of preparation for and
300 participation in proceedings before the commission.
301 (b) General statistical information may be disclosed provided the identities of the
302 individuals or parties are not disclosed.
303 (c) Information may be disclosed for inspection by the attorney general or other legal
304 representatives of the state or the commission.
305 (d) Information may be disclosed for information and reporting requirements of the
306 federal government.
307 (16) The procedures contained in this section are the exclusive remedy under state law
308 for employment discrimination based upon:
309 (a) race;
310 (b) color;
311 (c) sex;
312 (d) retaliation;
313 (e) pregnancy, childbirth, or pregnancy-related conditions;
314 (f) age;
315 (g) religion;
316 (h) national origin;
317 (i) disability;
318 (j) sexual orientation; or
319 (k) gender identity.
320 (17) (a) The commencement of an action under federal law for relief based upon [
321 any act prohibited by this chapter bars the commencement or continuation of an adjudicative
322 proceeding before the commission in connection with the same claim under this chapter.
323 (b) The transfer of a request for agency action to the Equal Employment Opportunity
324 Commission in accordance with Subsection (1)(d) is considered the commencement of an
325 action under federal law for purposes of Subsection (17)(a).
326 (c) Nothing in this Subsection (17) is intended to alter, amend, modify, or impair the
327 exclusive remedy provision set forth in Subsection (16).
328 Section 4. Section 34A-5-108 is amended to read:
329 34A-5-108. Judicial enforcement of division findings.
330 (1) The commission or the attorney general at the request of the commission shall
331 commence an action under Section 63G-4-501 for civil enforcement of a final order of the
332 commission issued under [
333 (a) the order finds that there is reasonable cause to believe that a respondent has
334 engaged or is engaging in discriminatory or prohibited employment practices made unlawful by
335 this chapter;
336 (b) counsel to the commission or the attorney general determines after reasonable
337 inquiry that the order is well grounded in fact and is warranted by existing law;
338 (c) the respondent has not received an order of automatic stay or discharge from the
339 United States Bankruptcy Court; and
340 (d) (i) the commission has not accepted a conciliation agreement to which the
341 aggrieved party and respondent are parties; or
342 (ii) the respondent has not conciliated or complied with the final order of the
343 commission within 30 days from the date the order is issued.
344 (2) If the respondent seeks judicial review of the final order under Section 63G-4-403,
345 pursuant to Section 63G-4-405 the commission may stay seeking civil enforcement pending the
346 completion of the judicial review.
Legislative Review Note
Office of Legislative Research and General Counsel