Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 185 (2016GS)

Sponsor

Sen. Iwamoto, J.

Final action

Governor Signed 3/21/2016

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• amends a definition;
• provides that a person who is subject to discrimination in matters of compensation may receive a remedy in an additional amount equal to the back pay amount already available; and
• requires the Division of Antidiscrimination and Labor to report to the Business and Labor Interim Committee annually regarding discrimination in matters of compensation.

Every vote on this bill

Bill text

LABOR REMEDY AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jani Iwamoto
House Sponsor: 
Sophia M. DiCaro
LONG TITLE
General Description:
This bill amends provisions related to discriminatory employment practices.
Highlighted Provisions:
This bill:
▸ amends a definition;
▸ provides that a person who is subject to discrimination in matters of compensation
may receive a remedy in an additional amount equal to the back pay amount already
available; and
▸ requires the Division of Antidiscrimination and Labor to report to the Business and
Labor Interim Committee annually regarding discrimination in matters of
compensation.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
34A-5-104
, as last amended by Laws of Utah 2015, Chapter 13
34A-5-107
, as last amended by Laws of Utah 2015, Chapter 13
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
34A-5-104
 is amended to read:
34A-5-104.
Powers.
(1) (a) The commission has jurisdiction over the subject of employment practices and
discrimination made unlawful by this chapter.
(b) The commission may adopt, publish, amend, and rescind rules, consistent with, and
for the enforcement of this chapter.
(2) The division may:
(a) appoint and prescribe the duties of an investigator, other employee, or agent of the
commission that the commission considers necessary for the enforcement of this chapter;
(b) receive, reject, investigate, and pass upon complaints alleging:
(i) discrimination in:
(A) employment;
(B) an apprenticeship program;
(C) an on-the-job training program; or
(D) a vocational school; or
(ii) the existence of a discriminatory or prohibited employment practice by:
(A) a person;
(B) an employer;
(C) an employment agency;
(D) a labor organization;
(E) an employee or member of an employment agency or labor organization;
(F) a joint apprenticeship committee; and
(G) a vocational school;
(c) investigate and study the existence, character, causes, and extent of discrimination
in employment, apprenticeship programs, on-the-job training programs, and vocational schools
in this state by:
(i) employers;
(ii) employment agencies;
(iii) labor organizations;
(iv) joint apprenticeship committees; and
(v) vocational schools;
(d) formulate plans for the elimination of discrimination by educational or other
means;
(e) hold hearings upon complaint made against:
(i) a person;
(ii) an employer;
(iii) an employment agency;
(iv) a labor organization;
(v) an employee or member of an employment agency or labor organization;
(vi) a joint apprenticeship committee; or
(vii) a vocational school;
(f) issue publications and reports of investigations and research that:
(i) promote good will among the various racial, religious, and ethnic groups of the
state; and
(ii) minimize or eliminate discrimination in employment because of race, color, sex,
religion, national origin, age, disability, sexual orientation, or gender identity;
(g) prepare and transmit to the governor, at least once each year, reports describing:
(i) the division's proceedings, investigations, and hearings;
(ii) the outcome of those hearings;
(iii) decisions the division renders; and
(iv) the other work performed by the division;
(h) recommend policies to the governor, and submit recommendation to employers,
employment agencies, and labor organizations to implement those policies;
(i) recommend legislation to the governor that the division considers necessary
concerning discrimination because of:
(i) race;
(ii) sex;
(iii) color;
(iv) national origin;
(v) religion;
(vi) age;
(vii) disability;
(viii) sexual orientation; or
(ix) gender identity; and
(j) within the limits of appropriations made for its operation, cooperate with other
agencies or organizations, both public and private, in the planning and conducting of
educational programs designed to eliminate discriminatory practices prohibited under this
chapter.
(3) The division shall investigate an alleged discriminatory practice involving an
officer or employee of state government if requested to do so by the Career Service Review
Office.
(4) (a) In a hearing held under this chapter, the division may:
(i) subpoena witnesses and compel their attendance at the hearing;
(ii) administer oaths and take the testimony of a person under oath; and
(iii) compel a person to produce for examination a book, paper, or other information
relating to the matters raised by the complaint.
(b) The division director or a hearing examiner appointed by the division director may
conduct a hearing.
(c) If a witness fails or refuses to obey a subpoena issued by the division, the division
may petition the district court to enforce the subpoena.
(d) If a witness asserts a privilege against self-incrimination, testimony and evidence
from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
(5) In 2018, before November 1, the division shall report to the Business and Labor
Interim Committee on the effectiveness of the commission and state law in addressing
discrimination in matters of compensation. 
Section 2. Section 
34A-5-107
 is amended to read:
34A-5-107.
Procedure for aggrieved person to file claim -- Investigations --
Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.
(1) (a) A person claiming to be aggrieved by a discriminatory or prohibited
employment practice may, or that person's attorney or agent may, make, sign, and file with the
division a request for agency action.
(b) A request for agency action shall be verified under oath or affirmation.
(c) A request for agency action made under this section shall be filed within 180 days
after the alleged discriminatory or prohibited employment practice occurs.
(d) The division may transfer a request for agency action filed with the division
pursuant to this section to the federal Equal Employment Opportunity Commission in
accordance with a work-share agreement that is:
(i) between the division and the Equal Employment Opportunity Commission; and
(ii) in effect on the day on which the request for agency action is transferred.
(2) An employer, labor organization, joint apprenticeship committee, or vocational
school who has an employee or member who refuses or threatens to refuse to comply with this
chapter may file with the division a request for agency action asking the division for assistance
to obtain the employee's or member's compliance by conciliation or other remedial action.
(3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the
division shall promptly assign an investigator to attempt a settlement between the parties by
conference, conciliation, or persuasion.
(b) If no settlement is reached, the investigator shall make a prompt impartial
investigation of all allegations made in the request for agency action.
(c) The division and its staff, agents, and employees:
(i) shall conduct every investigation in fairness to all parties and agencies involved;
and
(ii) may not attempt a settlement between the parties if it is clear that no discriminatory
or prohibited employment practice has occurred.
(d) An aggrieved party may withdraw the request for agency action prior to the
issuance of a final order.
(4) (a) If the initial attempts at settlement are unsuccessful, and the investigator
uncovers insufficient evidence during the investigation to support the allegations of a
discriminatory or prohibited employment practice set out in the request for agency action, the
investigator shall formally report these findings to the director or the director's designee.
(b) Upon receipt of the investigator's report described in Subsection (4)(a), the director
or the director's designee may issue a determination and order for dismissal of the adjudicative
proceeding.
(c) A party may make a written request to the Division of Adjudication for an
evidentiary hearing to review de novo the director's or the director's designee's determination
and order within 30 days of the date the determination and order for dismissal is issued.
(d) If the director or the director's designee receives no timely request for a hearing, the
determination and order issued by the director or the director's designee becomes the final order
of the commission.
(5) (a) If the initial attempts at settlement are unsuccessful and the investigator
uncovers sufficient evidence during the investigation to support the allegations of a
discriminatory or prohibited employment practice set out in the request for agency action, the
investigator shall formally report these findings to the director or the director's designee.
(b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), the
director or the director's designee may issue a determination and order based on the
investigator's report.
(ii) A determination and order issued under this Subsection (5)(b) shall:
(A) direct the respondent to cease any discriminatory or prohibited employment
practice; and
(B) provide relief to the aggrieved party as the director or the director's designee
determines is appropriate.
(c) A party may file a written request to the Division of Adjudication for an evidentiary
hearing to review de novo the director's or the director's designee's determination and order
within 30 days of the date the determination and order is issued.
(d) If the director or the director's designee receives no timely request for a hearing, the
determination and order issued by the director or the director's designee in accordance with
Subsection (5)(b) becomes the final order of the commission.
(6) In an adjudicative proceeding to review the director's or the director's designee's
determination that a prohibited employment practice has occurred, the division shall present the
factual and legal basis of the determination or order issued under Subsection (5).
(7) (a) Before the commencement of an evidentiary hearing:
(i) the party filing the request for agency action may reasonably and fairly amend any
allegation; and
(ii) the respondent may amend its answer.
(b) An amendment permitted under this Subsection (7) may be made:
(i) during or after a hearing; and
(ii) only with permission of the presiding officer.
(8) (a) If, upon reviewing all the evidence at a hearing, the presiding officer finds that a
respondent has not engaged in a discriminatory or prohibited employment practice, the
presiding officer shall issue an order dismissing the request for agency action containing the
allegation of a discriminatory or prohibited employment practice.
(b) The presiding officer may order that the respondent be reimbursed by the
complaining party for the respondent's attorneys' fees and costs.
(9) If, upon reviewing all the evidence at the hearing, the presiding officer finds that a
respondent has engaged in a discriminatory or prohibited employment practice, the presiding
officer shall issue an order requiring the respondent to:
(a) cease any discriminatory or prohibited employment practice; [
and
]
(b) provide relief to the complaining party, including:
(i) reinstatement;
(ii) back pay and benefits;
(iii) attorney fees; and
(iv) costs.
(10) If a discriminatory practice described in Subsection (9) includes discrimination in
matters of compensation, the presiding officer may provide, to the complaining party, in
addition to the amount available to the complaining party under Subsection (9)(b), an
additional amount equal to the amount of back pay available to the complaining party under
Subsection (9)(b)(ii) unless a respondent shows that:
(a) the act or omission that gave rise to the order was in good faith; and
(b) the respondent had reasonable grounds to believe that the act or omission was not
discrimination in matters of compensation under this chapter.
[
(10)
] 
(11)
 Conciliation between the parties is to be urged and facilitated at all stages of
the adjudicative process.
[
(11)
] 
(12)
 (a) Either party may file with the Division of Adjudication a written request
for review before the commissioner or Appeals Board of the order issued by the presiding
officer in accordance with:
(i) Section 
63G-4-301
; and
(ii) Chapter 1, Part 3, Adjudicative Proceedings.
(b) If there is no timely request for review, the order issued by the presiding officer
becomes the final order of the commission.
[
(12)
] 
(13)
 An order of the commission under Subsection [
(11)
] 
(12)
(a) is subject to
judicial review as provided in:
(a) Section 
63G-4-403
; and
(b) Chapter 1, Part 3, Adjudicative Proceedings.
[
(13)
] 
(14)
 The commission may make rules concerning procedures under this chapter
in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
[
(14)
] 
(15)
 The commission and its staff may not divulge or make public information
gained from an investigation, settlement negotiation, or proceeding before the commission
except as provided in Subsections [
(14)
] 
(15)
(a) through (d).
(a) Information used by the director or the director's designee in making a
determination may be provided to all interested parties for the purpose of preparation for and
participation in proceedings before the commission.
(b) General statistical information may be disclosed provided the identities of the
individuals or parties are not disclosed.
(c) Information may be disclosed for inspection by the attorney general or other legal
representatives of the state or the commission.
(d) Information may be disclosed for information and reporting requirements of the
federal government.
[
(15)
] 
(16)
 The procedures contained in this section are the exclusive remedy under
state law for employment discrimination based upon:
(a) race;
(b) color;
(c) sex;
(d) retaliation;
(e) pregnancy, childbirth, or pregnancy-related conditions;
(f) age;
(g) religion;
(h) national origin;
(i) disability;
(j) sexual orientation; or
(k) gender identity.
[
(16)
] 
(17)
 (a) The commencement of an action under federal law for relief based upon
an act prohibited by this chapter bars the commencement or continuation of an adjudicative
proceeding before the commission in connection with the same claim under this chapter.
(b) The transfer of a request for agency action to the Equal Employment Opportunity
Commission in accordance with Subsection (1)(d) is considered the commencement of an
action under federal law for purposes of Subsection [
(16)
] 
(17)
(a).
(c) Nothing in this Subsection [
(16)
] 
(17)
 is intended to alter, amend, modify, or impair
the exclusive remedy provision set forth in Subsection [
(15)
] 
(16)
.