2015 -- S 0276

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LC000851

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRACTICES

     

     Introduced By: Senators Gallo, Ruggerio, Goodwin, and Lynch

     Date Introduced: February 11, 2015

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

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     SECTION 1. Legislative findings and intent. It is the intent of the General Assembly to

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combat pregnancy discrimination, promote public health, and ensure full and equal participation

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for women in the labor force by requiring employers to provide reasonable accommodations to

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employees with conditions related to pregnancy, childbirth, or a related condition. Current

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workplace laws are inadequate to protect pregnant women from being forced out or fired when

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they need a simple, reasonable accommodation in order to stay on the job. Many pregnant women

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are single mothers or the primary breadwinners for their families; if they lose their jobs then the

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whole family will suffer. This is not an outcome that families can afford in today's difficult

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economy.

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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. [Effective January 1, 2014.] – (a) It shall be

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an unlawful employment 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)(v) 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)(A) Elicit or attempt to elicit any information directly or indirectly pertaining to his or

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her 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)(B) 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)(C) 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)(D) 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)(E) 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)(4) 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)(5) For any person, whether or not an employer, employment agency, labor

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

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this section to be an unlawful employment practice, or to obstruct or prevent any person from

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complying with the provisions of this chapter or any order issued pursuant to this chapter, or to

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attempt directly or indirectly to commit any act declared by this section to be an unlawful

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employment practice;

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

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applications for law enforcement agency positions or positions related to law enforcement

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agencies, a question inquiring or to otherwise inquire either orally or in writing whether the

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applicant has ever been arrested, charged with or convicted of any crime; provided, that:

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      (i) If a federal or state law or regulation creates a mandatory or presumptive

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disqualification from employment based on a person's conviction of one or more specified

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criminal offenses, an employer may include a question or otherwise inquire whether the applicant

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has ever been convicted of any of those offenses; or

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      (ii) If a standard fidelity bond or an equivalent bond is required for the position for

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which the applicant is seeking employment and his or her conviction of one or more specified

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criminal offenses would disqualify the applicant from obtaining such a bond, an employer may

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include a question or otherwise inquire whether the applicant has ever been convicted of any of

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those offenses; and

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      (iii) Notwithstanding, any employer may ask an applicant for information about his or

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her criminal convictions at the first interview or thereafter, in accordance with all applicable state

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and federal laws.

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     (8)(7) (i) 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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§§ 28-5-6, 28-5-7 and 28-5-38, until the expiration of a period of one year from June 7, 1988 or if

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

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

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38, to reduce the benefits or the compensation provided any employee on June 7, 1988, either

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

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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 §§ 28-5-6, 28-5-7 and 28-

 

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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 §§ 28-5-6, 28-5-7 and 28-5-38.

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

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condition related to pregnancy, childbirth, or a related medical condition, including, but not

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limited to, the need to express breast milk for a nursing child, if she so requests; unless the

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employer can demonstrate that the accommodation would pose an undue hardship on the

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employer's program, enterprise, or business.

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     (9) To require an employee to take leave if another reasonable accommodation can be

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provided to an employee's condition related to the pregnancy, childbirth, or a related medical

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condition.

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     (10) To deny employment opportunities to an employee or prospective employee, if such

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denial is based on the refusal of the employer to reasonably accommodate an employee's or

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prospective employee's condition related to pregnancy, childbirth, or a related medical condition.

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     (b) For the purposes of this section the following terms shall have the following

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meanings:

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     (1) "Reasonably accommodate" means providing reasonable accommodations, including,

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but not limited to: more frequent or longer breaks, time off to recover from childbirth, acquisition

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or modification of equipment, seating, temporary transfer to a less strenuous or hazardous

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position, job restructuring, light duty, break time and private non-bathroom space for expressing

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breast milk, assistance with manual labor, or modified work schedules.

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     (2) "Related conditions" includes, but is not limited to, lactation or the need to express

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breast milk for a nursing child.

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     (3) "Undue hardship" means an action requiring significant difficulty or expense to the

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employer. In making a determination of undue hardship, the factors that may be considered

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include, but shall not be limited to:

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     (i) The nature and cost of the accommodation;

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     (ii) The overall financial resources of the employer; the overall size of the business of the

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employer with respect to the number of employees, and the number, type, and location of its

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facilities; and

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     (iii) The effect on expenses and resources or the impact otherwise of such

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accommodation upon the operation of the employer.

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     (A) The employer shall have the burden of proving undue hardship.

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     (B) The fact that the employer provides or would be required to provide a similar

 

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accommodation to other classes of employees who need it, such as those who are injured on the

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job or those with disabilities, shall create a rebuttable presumption that the accommodation does

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not impose an undue hardship on the employer.

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     (4) "Qualified employee or prospective employee" means a "qualified individual" as

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defined in § 42-87-1(6)(i).

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     (c) No employer shall be required by this section to create additional employment that the

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employer would not otherwise have created, unless the employer does so or would do so for other

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classes of employees who need accommodation, such as those who are injured on the job or those

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with disabilities.

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     (d) No employer shall be required to discharge any employee, transfer any employee with

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more seniority, or promote any employee who is not qualified to perform the job, unless the

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employer does so or would do so to accommodate other classes of employees who need it, such

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as those who are injured on the job or those with disabilities.

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     (e) Notice of rights. An employer shall provide written notice of the right to be free from

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discrimination in relation to pregnancy, childbirth, and related medical conditions to:

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     (1) New employees at the commencement of employment; and

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     (2) Existing employees within one hundred twenty (120) days after the effective date of

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the local law that added this subdivision. Such notice may also be conspicuously posted at an

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employer's place of business in an area accessible to employees.

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     (f) The provisions of this section shall not be construed to affect any other provision of

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law relating to sex discrimination or pregnancy, or to preempt, limit, diminish or otherwise affect

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any other law that provides greater protection or specific benefits with respect to pregnancy,

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childbirth or medical conditions related to childbirth.

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     (g) Nothing in this section shall be construed to require an individual with a need related

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to pregnancy, childbirth, or a related medical condition to accept an accommodation which such

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individual chooses not to accept.

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     SECTION 3. This act shall take effect upon passage.

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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 employers from discriminating against employees due to

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pregnancy or medical conditions related to pregnancy or childbirth.

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     This act would take effect upon passage.

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