REFERENCE TITLE: employment discrimination; prohibition

 

 

 

State of Arizona

Senate

Fifty-third Legislature

First Regular Session

2017

 

 

SB 1382

 

Introduced by

Senators Bowie: Bradley, Cajero Bedford, Contreras, Dalessandro, Farley, Hobbs, Mendez, Meza, Miranda, Otondo, Peshlakai, Quezada; Representatives Alston, Blanc, Butler, Cardenas, Engel, Epstein, Salman

 

 

AN ACT

 

amending sections 41‑1463, 41‑1464 and 41‑1481, Arizona Revised Statutes; relating to discrimination in employment.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 


Be it enacted by the Legislature of the State of Arizona:

Section 1.  Section 41-1463, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1463.  Discrimination; unlawful practices; definition

A.  Nothing contained in this article shall be interpreted to require that the less qualified be preferred over the better qualified simply because of race, color, religion, sex gender, gender identity or expression, sexual orientation, age or national origin or on the basis of disability.

B.  It is an unlawful employment practice for an employer:

1.  To fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to the individual's compensation, terms, conditions or privileges of employment because of the individual's race, color, religion, sex gender, gender identity or expression, sexual orientation, age or national origin or on the basis of disability.

2.  To limit, segregate or classify employees or applicants for employment in any way which that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee, because of the individual's race, color, religion, sex gender, gender identity or expression, sexual orientation, age or national origin or on the basis of disability.

3.  To fail or refuse to hire, to discharge or to otherwise discriminate against any individual based on the results of a genetic test received by the employer, notwithstanding subsection I, paragraph 2 of this section.

C.  It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of the individual's race, color, religion, sex gender, gender identity or expression, sexual orientation, age or national origin or on the basis of disability or to classify or refer for employment any individual on the basis of the individual's race, color, religion, sex gender, gender identity or expression, sexual orientation, age or national origin or on the basis of disability.

D.  It is an unlawful employment practice for a labor organization:

1.  To exclude or to expel from its membership or otherwise to discriminate against any individual because of the individual's race, color, religion, sex gender, gender identity or expression, sexual orientation, age or national origin or on the basis of disability.

2.  To limit, segregate or classify its membership or applicants for membership or to classify or fail or refuse to refer for employment any individual in any way which that would deprive or tend to deprive the individual of employment opportunities or would limit those employment opportunities or otherwise adversely affect the individual's status as an employee or as an applicant for employment because of the individual's race, color, religion, sex gender, gender identity or expression, sexual orientation, age or national origin or on the basis of disability.

3.  To cause or attempt to cause an employer to discriminate against an individual in violation of this section.

E.  It is an unlawful employment practice for any employer, labor organization or joint labor‑management committee controlling apprenticeship or other training or retraining programs, including on‑the‑job training programs, to discriminate against any individual because of the individual's race, color, religion, sex gender, gender identity or expression, sexual orientation, age or national origin or on the basis of disability in admission to or employment in any program established to provide apprenticeship or other training and, if the individual is an otherwise qualified individual, to fail or refuse to reasonably accommodate the individual's disability.

F.  With respect to a qualified individual, it is an unlawful employment practice for a covered entity to:

1.  Participate in any contractual or other arrangement or relationship that has the effect of subjecting a qualified individual who applies with or who is employed by the covered entity to unlawful employment discrimination on the basis of disability.

2.  Use standards, criteria or methods of administration that have the effect of discriminating on the basis of disability or that perpetuate the discrimination of others who are subject to common administrative control.

3.  Exclude or otherwise deny equal jobs or benefits to an individual qualified for the job or benefits because of the known disability of an individual with whom the individual qualified for the job or benefits is known to have a relationship or association.

4.  Not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity or the individual only meets the definition of disability as prescribed in section 41‑1461, paragraph 4, subdivision (c).

5.  Deny employment opportunities to a job applicant or employee who is an otherwise qualified individual if the denial is based on the need of the covered entity to make reasonable accommodation to the physical or mental impairment of the applicant or employee.

6.  Use qualification standards, employment tests or other selection criteria, including those based on an individual's uncorrected vision, that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity.

7.  Fail to select and administer tests relating to employment in the most effective manner to ensure that, when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills or aptitude or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual or speaking skills of the applicant or employee, except if the skills are the factors that the test purports to measure.

G.  Notwithstanding any other provision of this article, it is not an unlawful employment practice:

1.  For an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or classify or refer for employment any individual or for an employer, labor organization or joint labor‑management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of the individual's religion, sex gender or national origin in those certain instances when religion, sex gender or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

2.  For any school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if the school, college, university or other educational institution or institution of learning is in whole or in substantial part owned, supported, controlled or managed by a particular religion or religious corporation, association or society, or if the curriculum of the school, college, university or other educational institution or institution of learning is directed toward the propagation of a particular religion.

3.  For an employer to fail or refuse to hire or employ any individual for any position, for an employment agency to fail or refuse to refer any individual for employment in any position or for a labor organization to fail or refuse to refer any individual for employment in any position, if both of the following apply:

(a)  The occupancy of the position or access to the premises in or upon on which any part of the duties of the position are performed or are to be performed is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any executive order of the president of the United States.

(b)  The individual has not fulfilled or has ceased to fulfill that requirement.

4.  With respect to age, for an employer, employment agency or labor organization:

(a)  To take any action otherwise prohibited under subsection B, C or D of this section if age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or if the differentiation is based on reasonable factors other than age.

(b)  To observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, deferred compensation or insurance plan, which is not a subterfuge to evade the purposes of the age discrimination provisions of this article, except that no employee benefit plan may excuse the failure to hire any individual and no seniority system or employee benefit plan may require or permit the involuntary retirement of any individual specified by section 41‑1465 because of the individual's age.

(c)  To discharge or otherwise discipline an individual for good cause.

5.  For a religious organization, including an educational institution substantially controlled or supported by a religious organization, to fail to hire, refuse to hire, refuse to promote or terminate an employee on the basis of that employee's gender, gender identity or expression or sexual orientation, if the position is directly related to the religious functions of the organization or directly involved in the provision of education to students of an educational institution substantially controlled or supported by a religious organization.

H.  As used in this article, unlawful employment practice does not include any action or measure taken by an employer, labor organization, joint labor‑management committee or employment agency with respect to an individual who is a member of the communist party of the United States or of any other organization required to register as a communist‑action or communist‑front organization by final order of the subversive activities control board pursuant to the subversive activities control act of 1950.

I.  Notwithstanding any other provision of this article, it is not an unlawful employment practice:

1.  For an employer to apply different standards of compensation or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system or a system which that measures earnings by quantity or quality of production or to employees who work in different locations, provided that these differences are not the result of an intention to discriminate because of race, color, religion, sex gender, gender identity or expression, sexual orientation or national origin.

2.  For an employer to give and act upon on the results of any professionally developed ability test provided that the test, its administration or action upon on the results is not designed, intended or used to discriminate because of race, color, religion, sex gender, gender identity or expression, sexual orientation or national origin.

3.  For any employer to differentiate upon on the basis of sex gender, gender identity or expression, sexual orientation or disability in determining the amount of the wages or compensation paid or to be paid to employees of the employer if the differentiation is authorized by the provisions of section 6(d) or section 14 of the fair labor standards act of 1938, as amended (29 United States Code section 206(d)).

J.  Nothing contained in this chapter applies to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of the business or enterprise under which a preferential treatment is given to any individual because the individual is an Indian living on or near a reservation.

K.  Nothing contained in this article or article 6 of this chapter requires any employer, employment agency, labor organization or joint labor‑management committee subject to this article to grant preferential treatment to any individual or group because of the race, color, religion, sex gender, gender identity or expression, sexual orientation or national origin of the individual or group on account of an imbalance which that may exist with respect to the total number or percentage of persons of any race, color, religion, sex gender, gender identity or expression, sexual orientation or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization or admitted to or employed in any apprenticeship or other training program, in comparison with the total number or percentage of persons of that race, color, religion, sex gender, gender identity or expression, sexual orientation or national origin in any community, state, section or other area, or in the available work force workforce in any community, state, section or other area.  This article and article 6 of this chapter do not require any employer, employment agency, labor organization or joint labor‑management committee subject to this article to retain or maintain records regarding an individual's or group's gender, gender identity or expression or sexual orientation.

L.  Nothing in the age discrimination prohibitions of this article may be construed to prohibit compulsory retirement of any employee who has attained sixty‑five years of age and who, for the twoyear period immediately before retirement, is employed in a bona fide executive or high policymaking position, if the employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan or any combination of plans of the employer for the employee, which that equals, in the aggregate, at least forty‑four thousand dollars.  In applying the retirement benefit test of this subsection, if any retirement benefit is in a form other than a straight life annuity, with no ancillary benefits, or if employees contribute to the plan or make rollover contributions, the benefit shall be adjusted in accordance with rules adopted by the division so the benefit is the equivalent of a straight life annuity, with no ancillary benefits, under a plan to which employees do not contribute and under which no rollover contributions are made.

M.  A covered entity may require that an individual with a disability shall not pose a direct threat to the health or safety of other individuals in the workplace.  For the purposes of this subsection, "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.

N.  This article does not alter the standards for determining eligibility for benefits under this state's workers' compensation laws or under state and federal disability benefit programs.

O.  For the purposes of this section and section 41‑1481, with respect to employers or employment practices involving a disability, "individual" means a qualified individual. END_STATUTE

Sec. 2.  Section 41-1464, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1464.  Other unlawful employment practices; opposition to unlawful practices; filing of charges; participation in proceedings; notices and advertisements for employment

A.  It is an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency or joint labor‑management committee controlling apprenticeship or other training or retraining programs, including on‑the‑job training programs, to discriminate against any individual or for a labor organization to discriminate against any member or applicant for membership because the member or applicant has opposed any practice which that is an unlawful employment practice under this article or has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under article 6 of this chapter.

B.  It is an unlawful employment practice for an employer, labor organization, employment agency or joint labor‑management committee controlling apprenticeship or other training or retraining programs, including on‑the‑job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency or relating to admission or to employment in any program established to provide apprenticeship or other training by such a joint labor‑management committee indicating any preference, limitation, specification or discrimination based on race, color, religion, sex gender, gender identity or expression, sexual orientation or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification or discrimination based on religion, sex gender or national origin when religion, sex gender or national origin is a bona fide occupational qualification for employment.

C.  It is unlawful for an employer, labor organization or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by an employer or membership in or any classification or referral for employment by a labor organization or relating to any classification or referral for employment by a labor organization or relating to any classification or referral for employment by an employment agency, indicating any preference, limitation, specification or discrimination based on age, except such a that the notice or advertisement may indicate a preference, limitation, specification or discrimination based on age when age is a bona fide occupational qualification for employment. END_STATUTE

Sec. 3.  Section 41-1481, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1481.  Filing charges; investigation; findings; conciliation; compliance proceedings; appeals; attorney fees; violation; classification

A.  A charge under this section shall be filed within one hundred eighty days after the alleged unlawful employment practice occurred.  A charge is deemed filed upon on receipt by the division from or on behalf of a person claiming to be aggrieved or, if filed by a member of the division, when executed by such member upon on oath or affirmation.  A charge is deemed filed by or on behalf of a person claiming to be aggrieved if received from the United States equal employment opportunity commission.  A charge shall be in writing upon on oath or affirmation and shall contain such information, including the date, place and circumstances of the alleged unlawful employment practice, and be in such form as the division requires.  Charges shall not be made public by the division.

B.  Whenever a charge is filed by or on behalf of a person claiming to be aggrieved or by a member of the division, referred to as the charging party, alleging that an employer, employment agency, labor organization or joint labor‑management committee controlling apprenticeship or other training or retraining programs, including on‑the‑job training programs, has engaged in an unlawful employment practice, the division shall serve notice of and a copy of the charge on such employer, employment agency, labor organization or joint labor‑management committee, referred to as the respondent, within ten days and shall make an investigation of the charge.  If the division determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall enter an order determining the same and dismissing the charge and shall notify the charging party and the respondent of its action.  If the division determines after such investigation that there is reasonable cause to believe that the charge is true, it shall enter an order containing its findings of fact and shall endeavor to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.  Any party to such informal proceeding may be represented by counsel.  Counsel need not be a member of the state bar if he is licensed to practice law in any other state or territory of the United States.  Nothing said or done during and as a part of such informal endeavors may be made public by the division or its officers or employees or used as evidence in a subsequent proceeding without the written consent of the persons concerned.  If a civil action resulting from a charge is commenced in any federal or state court, evidence collected by or submitted to the division during the investigation of the charge and the source of the evidence shall be subject to discovery by the parties to the civil action.  Any person who makes public information in violation of this subsection is guilty of a class 1 misdemeanor.  The division shall make its determination on reasonable cause as promptly as possible and as far as practicable not later than sixty days from after the filing of the charge.  If more than two years have elapsed after the alleged unlawful employment practice occurred, and if the charging party has received a notice of right to sue, the division may cease investigation of a charge without reaching a determination.

C.  All conciliation agreements shall provide that the charging party waives, releases and covenants not to sue the respondent or claim against the respondent in any forum with respect to the matters which that were alleged as charges filed with the division, subject to performance by the respondent of the promises and representations contained in the conciliation agreement.  The charging party or the respondent may prepare a conciliation agreement which that the division shall submit to the other party and which that, if accepted by the other party, shall be accepted by the division.

D.  If within thirty days after the division has made a determination that reasonable cause exists to believe that the charge is true the division has not accepted a conciliation agreement to which the charging party and the respondent are parties, the division may bring a civil action against the respondent, other than the state, named in the charge.  The charging party shall have the right to intervene in a civil action brought by the division.  If a charge filed with the division pursuant to subsection A of this section is dismissed by the division or if within ninety days from after the filing of such charge the division has not filed a civil action under this section or has not entered into a conciliation agreement with the charging party, the division shall so notify the charging party.  Within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge by the charging party or, if such charge was filed by a member of the division, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.  In no event shall any action be brought pursuant to this article more than one year after the charge to which the action relates has been filed.  Upon On application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs or security. Upon On timely application, the court may in its discretion permit the division to intervene in civil actions in which the state is not a defendant upon on certification that the case is of general public importance.  Upon On request the court may stay further proceedings for not more than sixty days pending the further efforts of the parties or the division to obtain voluntary compliance.

E.  Whenever a charge is filed with the division and the division concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this article or article 4 of this chapter, the division may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge.  Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with the supreme court rules of civil procedure.  The court having jurisdiction over such proceedings shall assign such action for hearing at the earliest practicable date and cause the action to be expedited in every way.

F.  The court shall assign any action brought under this article for hearing at the earliest practicable date and cause the action to be in every way expedited.  If the action has not been scheduled for trial within one hundred twenty days after issue has been joined, the judge may appoint a master pursuant to rule 53 of the supreme court rules of civil procedure.

G.  If the court finds that the defendant has intentionally engaged in or is intentionally engaging in an unlawful employment practice alleged in the complaint, the court may enjoin the defendant from engaging in such unlawful employment practice and order such affirmative action as may be appropriate.  Affirmative action may include, but is not limited to, reinstatement or hiring of employees with or without back pay payable by the employer, employment agency or labor organization responsible for the unlawful employment practice or any other equitable relief as the court deems appropriate.  Back pay liability shall not accrue from a date more than two years prior to before the filing of the charge with the division.  Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall reduce the back pay otherwise allowable.  No order of the court shall require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement or promotion of an individual as an employee or the payment to him of any back pay if such individual was refused admission, suspended or expelled or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, gender, gender identity or expression, sexual orientation, age, disability or national origin or a violation of section 41‑1464.

H.  In any case in which an employer, employment agency or labor organization fails to comply with an order of a court issued in a civil action brought under this section, a party to the action or the division upon on the written request of a person aggrieved by such failure may commence proceedings to compel compliance with such order.

I.  Any civil action brought under this section and any proceedings brought under subsection H of this section are subject to appeal as provided in sections 12‑120.21, 12‑120.22 and 12‑120.24.

J.  In any action or proceeding under this section the court may allow the prevailing party, other than the division, a reasonable attorney's fee as part of the costs. END_STATUTE