2018 -- H 7116

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LC003581

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- UNLAWFUL EMPLOYMENT

PRACTICES

     Introduced By: Representatives Perez, Vella-Wilkinson, Hull, and McKiernan

     Date Introduced: January 11, 2018

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 28-5-7 of the General Laws in Chapter 28-5 entitled "Fair

Employment Practices" is hereby amended to read as follows:

     28-5-7. Unlawful employment practices.

     It shall be an unlawful employment practice:

     (1) For any employer:

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

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

ancestral origin;

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

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

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

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

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

named employees;

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

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

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

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

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

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

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

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

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

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

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

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

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

personnel information shall be disclosed to the complainant.

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

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

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

ancestral origin; or

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

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

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

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

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

ancestral origin;

     (3) For any labor organization:

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

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

age, or country of ancestral origin;

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

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

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

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

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

labor agreement or other contract;

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

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

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

     (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

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

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

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

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

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

admission to membership of any individual, to:

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

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

country of ancestral origin;

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

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

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

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

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

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

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

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

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

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

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

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

ancestral origin of that group;

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

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

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

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

proceeding, or hearing under this chapter;

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

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

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

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

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

     (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, a question

inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been

arrested, charged with or convicted of any crime; provided, that:

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

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

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

has ever been convicted of any of those offenses; or

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

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

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

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

offenses; and

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

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

federal laws.

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

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

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

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

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

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

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

program.

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

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

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

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

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

     (9) For any prospective employer to inquire about a prospective employee's wage and

salary history before an offer of employment including compensation has been negotiated and

extended to the prospective employee unless a prospective employee has voluntarily disclosed

such information.

     SECTION 2. Section 28-6-18 of the General Laws in Chapter 28-6 entitled "Wage

Discrimination Based on Sex" is hereby amended to read as follows:

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     28-6-18. Wage differentials based on sex prohibited.

     (a) No employer shall discriminate in the payment of wages as between the sexes or shall

pay any female in his or her employ salary or wage rates less than the rates paid to male

employees for equal work or work on the same operations.

     (b) Nothing contained in this section shall prohibit a variation in rates of pay based upon

either difference in:

     (1) Seniority, experience, training, skill, or ability provided time spent on leave due to a

pregnancy-related condition or protected family and medical leave shall not reduce seniority;

     (2) Duties and services performed, either regularly or occasionally;

     (3) The shift or time of day worked; or

     (4) Availability for other operations or any other reasonable differentiation except

difference in sex.; or

     (5) Experience, training, skill, or ability.

     (c) Except as provided in this section, any provision in any contract, agreement, or

understanding entered into after passage of this act establishing a variation in rates of pay as

between the sexes, shall be null and void.

     SECTION 3. Chapter 28-6 of the General Laws entitled "Wage Discrimination Based on

Sex" is hereby amended by adding thereto the following section:

     28-6-20.1. Defenses.

     (a) It shall be an affirmative defense in any action against an employer alleging a

violation of this chapter that the employer, within the previous three (3) years and prior to the

commencement of the action, has completed a self-evaluation of its pay practices in good faith

and can demonstrate that reasonable progress has been made to eliminate wage differentials based

on gender for equal work.

     (b) An employer shall not use an employee's prior wage and salary history as a defense to

such action.

     SECTION 4. 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 -- UNLAWFUL EMPLOYMENT

PRACTICES

***

     This act would prohibit an employer from inquiring about a prospective employee wage

and salary history before an offer of employment with compensation, has been extended. It would

also prevent an employer from discriminating against an employee based on sex for seniority

reasons as long as time spent by the employee on leave due to a pregnancy-related condition or

protected family leave does not reduce that employee's seniority.

     This act would take effect upon passage.

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