Representative Eric K. Hutchings proposes the following substitute bill:


1     
WORKPLACE PROTECTION AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Eric K. Hutchings

5     
Senate Sponsor: ____________

6     

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          ▸     permits certain claims involving employers with between 5 and 14 employees to
14     proceed to an evidentiary hearing without a division investigation;
15          ▸     provides additional remedies for claims involving employers with between 5 and 14
16     employees;
17          ▸     requires the Division of Antidiscrimination and Labor to make certain resources
18     available to employers and employees;
19          ▸     permits certain people to commence an action for civil enforcement of a final order
20     under the Utah Antidiscrimination Act; and
21          ▸     makes technical and conforming changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None

26     Utah Code Sections Affected:
27     AMENDS:
28          34A-5-102, as last amended by Laws of Utah 2016, Chapters 330 and 370
29          34A-5-104, as last amended by Laws of Utah 2018, Chapter 317
30          34A-5-107, as last amended by Laws of Utah 2018, Chapter 317
31          34A-5-108, as last amended by Laws of Utah 2018, Chapter 317
32     

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 34A-5-102 is amended to read:
35          34A-5-102. Definitions -- Unincorporated entities -- Joint employers --
36     Franchisors.
37          (1) As used in this chapter:
38          (a) "Affiliate" means the same as that term is defined in Section 16-6a-102.
39          (b) "Apprenticeship" means a program for the training of apprentices including a
40     program providing the training of those persons defined as apprentices by Section 35A-6-102.
41          (c) "Bona fide occupational qualification" means a characteristic applying to an
42     employee that:
43          (i) is necessary to the operation; or
44          (ii) is the essence of the employee's employer's business.
45          (d) "Court" means:
46          (i) the district court in the judicial district of the state in which the asserted unfair
47     employment practice occurs; or
48          (ii) if the district court is not in session at that time, a judge of the court described in
49     Subsection (1)(d)(i).
50          (e) "Director" means the director of the division.
51          (f) "Disability" means a physical or mental disability as defined and covered by the
52     Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102.
53          (g) "Division" means the Division of Antidiscrimination and Labor.
54          (h) "Employee" means a person applying with or employed by an employer.
55          (i) (i) "Employer" means:
56          (A) the state;

57          (B) a political subdivision;
58          (C) a board, commission, department, institution, school district, trust, or agent of the
59     state or a political subdivision of the state; or
60          (D) a person employing [15] five or more employees within the state for each working
61     day in each of 20 calendar weeks or more in the current or preceding calendar year.
62          (ii) "Employer" does not include:
63          (A) a religious organization, a religious corporation sole, a religious association, a
64     religious society, a religious educational institution, or a religious leader, when that individual
65     is acting in the capacity of a religious leader;
66          (B) any corporation or association constituting an affiliate, a wholly owned subsidiary,
67     or an agency of any religious organization, religious corporation sole, religious association, or
68     religious society; or
69          (C) the Boy Scouts of America or [its] councils, chapters, or subsidiaries of the Boy
70     Scouts of America.
71          (j) "Employment agency" means a person:
72          (i) undertaking to procure employees or opportunities to work for any other person; or
73          (ii) holding the person out to be equipped to take an action described in Subsection
74     (1)(j)(i).
75          (k) "Federal executive agency" means an executive agency, as defined in 5 U.S.C. Sec.
76     105, of the federal government.
77          (l) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
78          (m) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
79          (n) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
80          (o) (i) "Gender identity" has the meaning provided in the Diagnostic and Statistical
81     Manual (DSM-5).
82          (ii) A person's gender identity can be shown by providing evidence, including[, but not
83     limited to,] medical history, care or treatment of the gender identity, consistent and uniform
84     assertion of the gender identity, or other evidence that the gender identity is sincerely held, part
85     of a person's core identity, and not being asserted for an improper purpose.
86          (p) "Joint apprenticeship committee" means an association of representatives of a labor
87     organization and an employer providing, coordinating, or controlling an apprentice training

88     program.
89          (q) "Labor organization" means an organization that exists for the purpose in whole or
90     in part of:
91          (i) collective bargaining;
92          (ii) dealing with employers concerning grievances, terms or conditions of employment;
93     or
94          (iii) other mutual aid or protection in connection with employment.
95          (r) "National origin" means the place of birth, domicile, or residence of an individual or
96     of an individual's ancestors.
97          (s) "On-the-job-training" means a program designed to instruct a person who, while
98     learning the particular job for which the person is receiving instruction:
99          (i) is also employed at that job; or
100          (ii) may be employed by the employer conducting the program during the course of the
101     program, or when the program is completed.
102          (t) "Person" means:
103          (i) one or more individuals, partnerships, associations, corporations, legal
104     representatives, trusts or trustees, or receivers;
105          (ii) the state; and
106          (iii) a political subdivision of the state.
107          (u) "Pregnancy, childbirth, or pregnancy-related conditions" includes breastfeeding or
108     medical conditions related to breastfeeding.
109          (v) "Presiding officer" means the same as that term is defined in Section 63G-4-103.
110          (w) "Prohibited employment practice" means a practice specified as discriminatory,
111     and therefore unlawful, in Section 34A-5-106.
112          (x) "Religious leader" means an individual who is associated with, and is an authorized
113     representative of, a religious organization or association or a religious corporation sole,
114     including a member of clergy, a minister, a pastor, a priest, a rabbi, an imam, or a spiritual
115     advisor.
116          (y) "Retaliate" means the taking of adverse action by an employer, employment agency,
117     labor organization, apprenticeship program, on-the-job training program, or vocational school
118     against one of its employees, applicants, or members because the employee, applicant, or

119     member:
120          (i) opposes an employment practice prohibited under this chapter; or
121          (ii) files charges, testifies, assists, or participates in any way in a proceeding,
122     investigation, or hearing under this chapter.
123          (z) "Sexual orientation" means an individual's actual or perceived orientation as
124     heterosexual, homosexual, or bisexual.
125          (aa) "Undue hardship" means an action that requires significant difficulty or expense
126     when considered in relation to factors such as the size of the entity, the entity's financial
127     resources, and the nature and structure of the entity's operation.
128          (bb) "Unincorporated entity" means an entity organized or doing business in the state
129     that is not:
130          (i) an individual;
131          (ii) a corporation; or
132          (iii) publicly traded.
133          (cc) "Vocational school" means a school or institution conducting a course of
134     instruction, training, or retraining to prepare individuals to follow an occupation or trade, or to
135     pursue a manual, technical, industrial, business, commercial, office, personal services, or other
136     nonprofessional occupations.
137          (2) (a) For purposes of this chapter, an unincorporated entity that is required to be
138     licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to
139     be the employer of each individual who, directly or indirectly, holds an ownership interest in
140     the unincorporated entity.
141          (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3,
142     Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption
143     under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that
144     the individual:
145          (i) is an active manager of the unincorporated entity;
146          (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated
147     entity; or
148          (iii) is not subject to supervision or control in the performance of work by:
149          (A) the unincorporated entity; or

150          (B) a person with whom the unincorporated entity contracts.
151          (c) As part of the rules made under Subsection (2)(b), the commission may define:
152          (i) "active manager";
153          (ii) "directly or indirectly holds at least an 8% ownership interest"; and
154          (iii) "subject to supervision or control in the performance of work."
155          (3) For purposes of determining whether two or more persons are considered joint
156     employers under this chapter, an administrative ruling of a federal executive agency may not be
157     considered a generally applicable law unless that administrative ruling is determined to be
158     generally applicable by a court of law, or adopted by statute or rule .
159          (4) (a) For purposes of this chapter, a franchisor is not considered to be an employer of:
160          (i) a franchisee; or
161          (ii) a franchisee's employee.
162          (b) With respect to a specific claim for relief under this chapter made by a franchisee or
163     a franchisee's employee, this Subsection (4) does not apply to a franchisor under a franchise
164     that exercises a type or degree of control over the franchisee or the franchisee's employee not
165     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
166     and brand.
167          Section 2. Section 34A-5-104 is amended to read:
168          34A-5-104. Powers.
169          (1) (a) The commission has jurisdiction over the subject of employment practices and
170     discrimination made unlawful by this chapter.
171          (b) The commission may adopt, publish, amend, and rescind rules, consistent with, and
172     for the enforcement of this chapter.
173          (2) The division may:
174          (a) appoint and prescribe the duties of an investigator, other employee, or agent of the
175     commission that the commission considers necessary for the enforcement of this chapter;
176          (b) receive, reject, investigate, and pass upon complaints alleging:
177          (i) discrimination in:
178          (A) employment;
179          (B) an apprenticeship program;
180          (C) an on-the-job training program; or

181          (D) a vocational school; or
182          (ii) the existence of a discriminatory or prohibited employment practice by:
183          (A) a person;
184          (B) an employer;
185          (C) an employment agency;
186          (D) a labor organization;
187          (E) an employee or member of an employment agency or labor organization;
188          (F) a joint apprenticeship committee; and
189          (G) a vocational school;
190          (c) investigate and study the existence, character, causes, and extent of discrimination
191     in employment, apprenticeship programs, on-the-job training programs, and vocational schools
192     in this state by:
193          (i) employers;
194          (ii) employment agencies;
195          (iii) labor organizations;
196          (iv) joint apprenticeship committees; and
197          (v) vocational schools;
198          (d) formulate plans for the elimination of discrimination by educational or other
199     means;
200          (e) issue publications and reports of investigations and research that:
201          (i) promote good will among the various racial, religious, and ethnic groups of the
202     state; and
203          (ii) minimize or eliminate discrimination in employment because of race, color, sex,
204     religion, national origin, age, disability, sexual orientation, or gender identity;
205          (f) prepare and transmit to the governor, at least once each year, reports describing:
206          (i) division proceedings and investigations;
207          (ii) decisions the division renders; and
208          (iii) other work performed by the division;
209          (g) recommend policies to the governor, and submit recommendation to employers,
210     employment agencies, and labor organizations to implement those policies;
211          (h) recommend legislation to the governor that the division considers necessary

212     concerning discrimination because of:
213          (i) race;
214          (ii) sex;
215          (iii) color;
216          (iv) national origin;
217          (v) religion;
218          (vi) age;
219          (vii) disability;
220          (viii) sexual orientation; or
221          (ix) gender identity; and
222          (i) within the limits of appropriations made for the division's operation, cooperate with
223     other agencies or organizations, both public and private, in the planning and conducting of
224     educational programs designed to eliminate discriminatory practices prohibited under this
225     chapter.
226          (3) In addition to processing complaints made in accordance with this chapter, the
227     division shall investigate an alleged discriminatory practice involving an officer or employee of
228     state government when requested by the Career Service Review Office.
229          (4) (a) In an investigation held under this chapter, the division may subpoena a person
230     to compel the person to:
231          (i) cooperate and participate in an interview; or
232          (ii) produce for examination a book, paper, or other information relating to the matters
233     raised by the complaint.
234          (b) If a person fails or refuses to obey a subpoena issued by the division, the division
235     may petition the district court to enforce the subpoena.
236          (c) If a person asserts a privilege against self-incrimination, testimony and evidence
237     from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
238          (5) In 2018, before November 1, the division shall submit, in accordance with Section
239     68-3-14, a written report to the Business and Labor Interim Committee on the effectiveness of
240     the commission and state law in addressing discrimination in matters of compensation.
241           (6) The division shall make available through the division's website resources
242     designed to educate employers and employees regarding discriminatory practices prohibited

243     under this chapter.
244          Section 3. Section 34A-5-107 is amended to read:
245          34A-5-107. Procedure for aggrieved person to file claim -- Investigations --
246     Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.
247          (1) (a) A person claiming to be aggrieved by a discriminatory or prohibited
248     employment practice may, or that person's attorney or agent may, make, sign, and file with the
249     division a request for agency action.
250          (b) A request for agency action shall be verified under oath or affirmation.
251          (c) A request for agency action made under this section shall be filed within 180 days
252     after the alleged discriminatory or prohibited employment practice occurs.
253          (d) The division may transfer a request for agency action filed with the division
254     pursuant to this section to the federal Equal Employment Opportunity Commission:
255          (i) in accordance with a work-share agreement that is:
256          [(i)] (A) between the division and the Equal Employment Opportunity Commission;
257     and
258          [(ii)] (B) in effect on the day on which the request for agency action is transferred[.];
259     and
260          (ii) if the request for agency action is against an employer with 15 or more employees.
261          (2) An employer, labor organization, joint apprenticeship committee, or vocational
262     school who has an employee or member who refuses or threatens to refuse to comply with this
263     chapter may file with the division a request for agency action asking the division for assistance
264     to obtain the employee's or member's compliance by conciliation or other remedial action.
265          (3) (a) Before an investigation begins into allegations of discriminatory or prohibited
266     employment practice, the division shall promptly assign a mediator to offer mediation services
267     between the parties by conference.
268          (b) (i) [If] Except as described in Subsection (3)(b)(ii), if mediation services are
269     refused or no settlement is reached, the division shall promptly assign an investigator.
270          (ii) If mediation services are refused or no settlement is reached, the following apply if
271     the employer employs fewer than 15 employees:
272          (A) the division shall notify the parties that attempts at settlement have ceased;
273          (B) the division may not promptly assign an investigator as described in Subsection

274     (b)(i);
275          (C) the division may not conduct an investigation described in Subsection (3)(c);
276          (D) the director or director's designee may not issue a determination and order
277     described in Subsection (4) or (5); and
278          (E) the person requesting agency action may file a request for an evidentiary hearing
279     before a presiding officer, as described under Subsections (7) through (9), within 30 days after
280     the day on which the division notifies the parties in accordance with Subsection (3)(b)(ii)(A).
281          [(ii)] (c) (i) The investigator described in Subsection (3)(b)(i) shall make a prompt
282     impartial investigation of all allegations made in the request for agency action.
283          [(c)] (ii) The division and the division's staff, agents, and employees shall conduct
284     [every] the investigation in fairness to [all] the parties and agencies involved.
285          (d) An aggrieved party may withdraw the request for agency action [prior to] before the
286     issuance of a final order.
287          (4) (a) If the initial attempts at settlement are unsuccessful, and the investigator
288     uncovers insufficient evidence during the investigation to support the allegations of a
289     discriminatory or prohibited employment practice set out in the request for agency action, the
290     investigator shall formally report these findings to the director or the director's designee.
291          (b) (i) Upon receipt of the investigator's report described in Subsection (4)(a), the
292     director or the director's designee may issue a determination and order for dismissal of the
293     adjudicative proceeding.
294          (ii) A determination and order issued under this Subsection (4)(b) shall include a
295     notice:
296          (A) of the right to request an evidentiary hearing under Subsection (4)(c); and
297          (B) that failure to request an evidentiary hearing under Subsection (4)(c) will result in
298     the determination and order becoming final, in accordance with Subsection (4)(d).
299          (c) A party may make a written request to the Division of Adjudication for an
300     evidentiary hearing to review de novo the director's or the director's designee's determination
301     and order within 30 days [from] after the day on which the determination and order for
302     dismissal is issued.
303          (d) If the director or the director's designee receives no timely request for a hearing, the
304     determination and order issued by the director or the director's designee becomes the final order

305     of the commission.
306          (5) (a) If the initial attempts at settlement are unsuccessful and the investigator
307     uncovers sufficient evidence during the investigation to support the allegations of a
308     discriminatory or prohibited employment practice set out in the request for agency action, the
309     investigator shall formally report these findings to the director or the director's designee.
310          (b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the
311     director or the director's designee may issue a determination and order based on the
312     investigator's report.
313          (ii) A determination and order issued under this Subsection (5)(b) shall:
314          (A) direct the respondent to cease any discriminatory or prohibited employment
315     practice;
316          (B) provide relief to the aggrieved party as the director or the director's designee
317     determines is appropriate;
318          (C) include a notice of the right to request an evidentiary hearing under Subsection
319     (5)(c); and
320          (D) include a notice that failure to request an evidentiary hearing under Subsection
321     (5)(c) will result in the determination and order becoming final, in accordance with Subsection
322     (5)(d).
323          (c) A party may file a written request to the Division of Adjudication for an evidentiary
324     hearing to review de novo the director's or the director's designee's determination and order
325     within 30 days after the day on which the determination and order is issued.
326          (d) If the director or the director's designee receives no timely request for a hearing, the
327     determination and order issued by the director or the director's designee in accordance with
328     Subsection (5)(b) becomes the final order of the commission.
329          (6) In an adjudicative proceeding to review the director's or the director's designee's
330     determination that a prohibited employment practice has occurred, the division shall present the
331     factual and legal basis of the determination and order issued under Subsection (5).
332          (7) (a) If, upon reviewing all the evidence at a hearing, the presiding officer finds that a
333     respondent has not engaged in a discriminatory or prohibited employment practice, the
334     presiding officer shall issue an order dismissing the request for agency action containing the
335     allegation of a discriminatory or prohibited employment practice.

336          (b) The presiding officer may order that the respondent be reimbursed by the
337     complaining party for the respondent's attorney fees and costs.
338          (8) If, upon reviewing all the evidence at the hearing, the presiding officer finds that a
339     respondent has engaged in a discriminatory or prohibited employment practice, the presiding
340     officer shall issue an order requiring the respondent to:
341          (a) cease any discriminatory or prohibited employment practice; and
342          (b) provide relief to the complaining party, including:
343          (i) (A) reinstatement; or
344          (B) front pay for up to two years, if the respondent employs fewer than 15 employees
345     and the front pay is awarded in lieu of reinstatement;
346          (ii) back pay and benefits;
347          (iii) attorney fees; [and]
348          (iv) costs[.]; and
349          (v) if the respondent employs fewer than 15 employees, additional damages described
350     under 42 U.S.C. Sec. 1981a, in an amount not to exceed $25,000.
351          (9) If a discriminatory practice described in Subsection (8) includes discrimination in
352     matters of compensation, the presiding officer may provide, to the complaining party, in
353     addition to the amount available to the complaining party under Subsection (8)(b), an
354     additional amount equal to the amount of back pay available to the complaining party under
355     Subsection (8)(b)(ii) unless a respondent shows that:
356          (a) the act or omission that gave rise to the order was in good faith; and
357          (b) the respondent had reasonable grounds to believe that the act or omission was not
358     discrimination in matters of compensation under this chapter.
359          (10) Conciliation between the parties is to be urged and facilitated at all stages of the
360     adjudicative process.
361          (11) (a) Either party may file with the Division of Adjudication a written request for
362     review before the commissioner or Appeals Board of the order issued by the presiding officer
363     in accordance with:
364          (i) Section 63G-4-301; and
365          (ii) Chapter 1, Part 3, Adjudicative Proceedings.
366          (b) If there is no timely request for review, the order issued by the presiding officer

367     becomes the final order of the commission.
368          (12) An order of the commission under Subsection (11)(a) is subject to judicial review
369     as provided in:
370          (a) Section 63G-4-403; and
371          (b) Chapter 1, Part 3, Adjudicative Proceedings.
372          (13) The commission may make rules concerning procedures under this chapter in
373     accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
374          (14) The commission and [its] the commission's staff may not divulge or make public
375     information gained from an investigation, settlement negotiation, or proceeding before the
376     commission except as provided in Subsections (14)(a) through (d).
377          (a) Information used by the director or the director's designee in making a
378     determination may be provided to all interested parties for the purpose of preparation for and
379     participation in proceedings before the commission.
380          (b) General statistical information may be disclosed provided the identities of the
381     individuals or parties are not disclosed.
382          (c) Information may be disclosed for inspection by the attorney general or other legal
383     representatives of the state or the commission.
384          (d) Information may be disclosed for information and reporting requirements of the
385     federal government.
386          (15) The procedures contained in this section are the exclusive remedy under state law
387     for employment discrimination based upon:
388          (a) race;
389          (b) color;
390          (c) sex;
391          (d) retaliation;
392          (e) pregnancy, childbirth, or pregnancy-related conditions;
393          (f) age;
394          (g) religion;
395          (h) national origin;
396          (i) disability;
397          (j) sexual orientation; or

398          (k) gender identity.
399          (16) (a) The commencement of an action under federal law for relief based upon an act
400     prohibited by this chapter bars the commencement or continuation of an adjudicative
401     proceeding before the commission in connection with the same claim under this chapter.
402          (b) The transfer of a request for agency action to the Equal Employment Opportunity
403     Commission in accordance with Subsection (1)(d) is considered the commencement of an
404     action under federal law for purposes of Subsection (16)(a).
405          (c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair the
406     exclusive remedy provision set forth in Subsection (15).
407          Section 4. Section 34A-5-108 is amended to read:
408          34A-5-108. Judicial enforcement of division findings.
409          (1) The commission or the attorney general at the request of the commission shall, or a
410     person whose interests are directly impaired or threatened by the failure of the commission to
411     enforce an order may, commence an action under Section 63G-4-501 for civil enforcement of a
412     final order of the commission issued under Section 34A-5-107 if:
413          (a) the order finds that there is reasonable cause to believe that a respondent has
414     engaged or is engaging in discriminatory or prohibited employment practices made unlawful by
415     this chapter;
416          (b) counsel to the commission or the attorney general determines after reasonable
417     inquiry that the order is well grounded in fact and is warranted by existing law;
418          (c) the respondent has not received an order of automatic stay or discharge from the
419     United States Bankruptcy Court; and
420          (d) (i) the commission has not accepted a conciliation agreement to which the
421     aggrieved party and respondent are parties; or
422          (ii) the respondent has not conciliated or complied with the final order of the
423     commission within 30 days [from the date] after the day on which the order is issued.
424          (2) If the respondent seeks judicial review of the final order under Section 63G-4-403,
425     pursuant to Section 63G-4-405 the commission may stay seeking civil enforcement pending the
426     completion of the judicial review.