2013 -- S 0357

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LC01392

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS - FAIR EMPLOYMENT PRACTICES

     Introduced By: Senators Metts, Goldin, Pichardo, Jabour, and Miller

     Date Introduced: February 13, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 28-5-6 of the General Laws in Chapter 28-5 entitled "Fair

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Employment Practices" is hereby amended to read as follows:

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     28-5-6. Definitions. -- When used in this chapter:

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     (1) "Age" means anyone who is at least forty (40) years of age.

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     (2) "Because of sex" or "on the basis of sex" include, but are not limited to, because of or

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on the basis of pregnancy, childbirth, or related medical conditions, and women affected by

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pregnancy, childbirth, or related medical conditions shall be treated the same for all employment

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related purposes, including receipt of benefits under fringe benefit programs, as other persons not

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so affected but similar in their ability or inability to work, and nothing in this chapter shall be

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interpreted to permit otherwise.

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     (3) "Commission" means the Rhode Island commission against discrimination created by

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this chapter

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     (4) “Conviction” means an adjudication by a court of competent jurisdiction that the

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defendant committed a crime.

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     (5) “Direct relationship” means that the nature of the criminal conduct for which the

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person was convicted has a direct bearing on his or her fitness or ability to perform one or more

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of the duties or responsibilities necessarily related to the license or employment sought.

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     (4)(6) "Disability" means a disability as defined in section 42-87-1.

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     (5)(7) "Discriminate" includes segregate or separate.

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     (6)(8) "Employee" does not include any individual employed by his or her parents,

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spouse, or child, or in the domestic service of any person.

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     (7) (i)(9) "Employer" includes the state and all political subdivisions of the state and any

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person in this state employing four (4) or more individuals, and any person acting in the interest

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of an employer directly or indirectly.

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     (ii) Nothing in this subdivision shall be construed to apply to a religious corporation,

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association, educational institution, or society with respect to the employment of individuals of its

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religion to perform work connected with the carrying on of its activities.

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     (8)(10) "Employment agency" includes any person undertaking with or without

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compensation to procure opportunities to work, or to procure, recruit, refer, or place employees.

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     (9)(11) "Firefighter" means an employee the duties of whose position includes work

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connected with the control and extinguishment of fires or the maintenance and use of firefighting

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apparatus and equipment, including an employee engaged in this activity who is transferred or

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promoted to a supervisory or administrative position.

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     (10)(12) "Gender identity or expression" includes a person's actual or perceived gender,

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as well as a person's gender identity, gender-related self image, gender-related appearance, or

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gender-related expression; whether or not that gender identity, gender-related self image, gender-

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related appearance, or gender-related expression is different from that traditionally associated

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with the person's sex at birth.

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     (11)(13) "Labor organization" includes any organization which exists for the purpose, in

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whole or in part, of collective bargaining or of dealing with employers concerning grievances,

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terms or conditions of employment, or of other mutual aid or protection in relation to

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employment.

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     (12)(14) "Law enforcement officer" means an employee the duties of whose position

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include investigation, apprehension, or detention of individuals suspected or convicted of

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offenses against the criminal laws of the state, including an employee engaged in such activity

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who is transferred or promoted to a supervisory or administrative position. For the purpose of this

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subdivision, "detention" includes the duties of employees assigned to guard individuals

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incarcerated in any penal institution.

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     (13)(15) "Person" includes one or more individuals, partnerships, associations,

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organizations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.

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     (16) “Public agency” means the state or any local subdivision thereof, or any state or

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local department, agency, board or commission.

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     (14)(17) "Religion" includes all aspects of religious observance and practice, as well as

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belief, unless an employer, union or employment agency demonstrates that it is unable to

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reasonably accommodate to an employee's or prospective employee's or union member's religious

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observance or practice without undue hardship on the conduct of its business.

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     (15)(18) "Sexual orientation" means having or being perceived as having an orientation

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for heterosexuality, bisexuality, or homosexuality. This definition is intended to describe the

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status of persons and does not render lawful any conduct prohibited by the criminal laws of this

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state nor impose any duty on a religious organization. This definition does not confer legislative

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approval of that status, but is intended to assure the basic human rights of persons to obtain and

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hold employment, regardless of that status.

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     (16)(19) The terms, as used regarding persons with disabilities:

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     (i) "Auxiliary aids and services" and "reasonable accommodation" shall have the same

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meaning as those items are defined in section 42-87-1.1; and

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     (ii) "Hardship" means an "undue hardship" as defined in section 42-87-1.1.

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     SECTION 2. Section 28-5-7 of the General Laws in Chapter 28-5 entitled "Fair

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Employment Practices" is hereby amended to read as follows:

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     28-5-7. Unlawful employment practices. -- It shall be an unlawful employment

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practice:

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      (1) For any employer:

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      (i) To refuse to hire any applicant for employment because of his or her race or color,

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religion, sex, sexual orientation, gender identity or expression, disability, age, or country of

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ancestral origin;

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      (ii) Because of those reasons, to discharge an employee or discriminate against him or

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her with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or

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any other matter directly or indirectly related to employment. However, if an insurer or employer

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extends insurance related benefits to persons other than or in addition to the named employee,

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nothing in this subdivision shall require those benefits to be offered to unmarried partners of

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named employees;

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      (iii) In the recruiting of individuals for employment or in hiring them, to utilize any

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employment agency, placement service, training school or center, labor organization, or any other

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employee referring source which the employer knows, or has reasonable cause to know,

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discriminates against individuals because of their race or color, religion, sex, sexual orientation,

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gender identity or expression, disability, age, or country of ancestral origin;

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      (iv) To refuse to reasonably accommodate an employee's or prospective employee's

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disability unless the employer can demonstrate that the accommodation would pose a hardship on

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the employer's program, enterprise, or business; or

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      (v) When an employee has presented to the employer an internal complaint alleging

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harassment in the workplace on the basis of race or color, religion, sex, disability, age, sexual

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orientation, gender identity or expression, or country of ancestral origin, to refuse to disclose in a

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timely manner in writing to that employee the disposition of the complaint, including a

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description of any action taken in resolution of the complaint; provided, however, no other

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personnel information shall be disclosed to the complainant.

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      (2) (i) For any employment agency to fail or refuse to properly classify or refer for

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employment or otherwise discriminate against any individual because of his or her race or color,

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religion, sex, sexual orientation, gender identity or expression, disability, age, or country of

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ancestral origin; or

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      (ii) For any employment agency, placement service, training school or center, labor

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organization, or any other employee referring source to comply with an employer's request for the

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referral of job applicants if the request indicates either directly or indirectly that the employer will

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not afford full and equal employment opportunities to individuals regardless of their race or color,

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religion, sex, sexual orientation, gender identity or expression, disability, age, or country of

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ancestral origin;

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      (3) For any labor organization:

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      (i) To deny full and equal membership rights to any applicant for membership because of

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his or her race or color, religion, sex, sexual orientation, gender identity or expression, disability,

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age, or country of ancestral origin;

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      (ii) Because of those reasons, to deny a member full and equal membership rights, expel

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him or her from membership, or otherwise discriminate in any manner against him or her with

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respect to his or her hire, tenure, compensation, terms, conditions or privileges of employment, or

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any other matter directly or indirectly related to membership or employment, whether or not

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authorized or required by the constitution or bylaws of the labor organization or by a collective

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labor agreement or other contract;

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      (iii) To fail or refuse to classify properly or refer for employment, or otherwise to

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discriminate against any member because of his or her race or color, religion, sex, sexual

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orientation, gender identity or expression, disability, age, or country of ancestral origin; or

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      (iv) To refuse to reasonably accommodate a member's or prospective member's disability

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unless the labor organization can demonstrate that the accommodation would pose a hardship on

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the labor organization's program, enterprise, or business;

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      (4) Except where based on a bona fide occupational qualification certified by the

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commission or where necessary to comply with any federal mandated affirmative action

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programs, for any employer or employment agency, labor organization, placement service,

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training school or center, or any other employee referring source, prior to employment or

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admission to membership of any individual, to:

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      (i) Elicit or attempt to elicit any information directly or indirectly pertaining to his or her

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race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or

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country of ancestral origin;

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      (ii) Make or keep a record of his or her race or color, religion, sex, sexual orientation,

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gender identity or expression, disability, age, or country of ancestral origin;

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      (iii) Use any form of application for employment, or personnel or membership blank

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containing questions or entries directly or indirectly pertaining to race or color, religion, sex,

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sexual orientation, gender identity or expression, disability, age, or country of ancestral origin;

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      (iv) Print or publish or cause to be printed or published any notice or advertisement

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relating to employment or membership indicating any preference, limitation, specification, or

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discrimination based upon race or color, religion, sex, sexual orientation, gender identity or

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expression, disability, age, or country of ancestral origin; or

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      (v) Establish, announce, or follow a policy of denying or limiting, through a quota

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system or otherwise, employment or membership opportunities of any group because of the race

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or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country

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of ancestral origin of that group;

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      (5) For any employer or employment agency, labor organization, placement service,

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training school or center, or any other employee referring source to discriminate in any manner

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against any individual because he or she has opposed any practice forbidden by this chapter, or

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because he or she has made a charge, testified, or assisted in any manner in any investigation,

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proceeding, or hearing under this chapter;

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      (6) For any person, whether or not an employer, employment agency, labor organization,

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or employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to

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be an unlawful employment practice, or to obstruct or prevent any person from complying with

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the provisions of this chapter or any order issued pursuant to this chapter, or to attempt directly or

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indirectly to commit any act declared by this section to be an unlawful employment practice;

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      (7) For any employer to include on any application for employment, except applications

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for law enforcement agency positions or positions related to law enforcement agencies or where

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any federal or state law or regulation creates mandatory or presumptive disqualification based on

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a person’s conviction of one or more types of criminal offenses, a question inquiring or to

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otherwise inquire either orally or in writing whether the applicant has ever been arrested, or

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charged with or convicted of any crime; provided, that after determining that an applicant is a

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finalist or after making a conditional offer of employment, an employee may ask an applicant for

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information about his or her criminal convictions, in accordance with all applicable state and

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federal laws nothing in this subdivision shall prevent an employer from inquiring whether the

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applicant has ever been convicted of any crime;

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     (8) (a) For an employer to deny an applicant based on his or her criminal record except if:

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     (i) There is a direct relationship between one or more of the previous criminal offenses

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and employment sought. If the employer finds that there is a direct relationship, an employer

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must take into consideration any information produced by the person, or produced on his/her

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behalf, in regard to his/her rehabilitation and good conduct; or

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     (ii) The applicant is applying for a position for which any federal or state law or

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regulation creates mandatory or presumptive disqualification based on a person’s conviction of

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one or more types of criminal offenses;

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     (iii) The applicant is not bondable under a standard fidelity bond or an equivalent bond

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where such bond is required; or

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     (iv) The granting of the employment would involve an unreasonable risk to property, or

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to the safety or welfare of specific individuals, employees or the general public.

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     (b) No employer shall be liable because it has complied with this section.

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      (8) (i) (9) For any person who, on June 7, 1988, is providing either by direct payment or

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by making contributions to a fringe benefit fund or insurance program, benefits in violation with

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sections 28-5-6, 28-5-7 and 28-5-38, until the expiration of a period of one year from June 7,

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1988 or if there is an applicable collective bargaining agreement in effect on June 7, 1988, until

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the termination of that agreement, in order to come into compliance with sections 28-5-6, 28-5-7

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and 28-5-38, to reduce the benefits or the compensation provided any employee on June 7, 1988,

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either directly or by failing to provide sufficient contributions to a fringe benefit fund or

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insurance program.

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      (ii) Where the costs of these benefits on June 7, 1988 are apportioned between employers

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and employees, the payments or contributions required to comply with sections 28-5-6, 28-5-7

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and 28-5-38 may be made by employers and employees in the same proportion.

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      (iii) Nothing in this section shall prevent the readjustment of benefits or compensation

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for reasons unrelated to compliance with sections 28-5-6, 28-5-7 and 28-5-38.

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     SECTION 3. This act shall take effect upon passage.

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LC01392

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - FAIR EMPLOYMENT PRACTICES

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     This act would prohibit inquiries on employment applications regarding prior criminal

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convictions except when federal or state law specifically disqualifies a person from employment

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because of a prior conviction or authorizes such inquiries. Further, this act specifies the situations

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when an employer may inquire about a potential employee’s criminal record and the factors an

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employer must take into account in evaluating an applicant’s criminal record.

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     This act would take effect upon passage.

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LC01392

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