2019 -- S 0330

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LC001320

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRACTICES -

- SEXUAL HARASSMENT

     Introduced By: Senators Cano, Goldin, Euer, Murray, and Lynch Prata

     Date Introduced: February 13, 2019

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 28-5-6 and 28-5-7.3 of the General Laws in Chapter 28-5 entitled

"Fair Employment Practices" are hereby amended to read as follows:

     28-5-6. Definitions.

     When used in this chapter:

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

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

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

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

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

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

interpreted to permit otherwise.

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

this chapter.

     (4) "Conviction" means, for the purposes of this chapter only, any verdict or finding of

guilt after a criminal trial or any plea of guilty or nolo contendere to a criminal charge.

     (5) "Disability" means a disability as defined in § 42-87-1.

     (6) "Discriminate" includes segregate or separate.

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

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

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

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

of an employer directly or indirectly.

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

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

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

     (9) "Employment agency" includes any person undertaking with or without compensation

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

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

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

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

promoted to a supervisory or administrative position.

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

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

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

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

with the person's sex at birth.

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

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

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

employment.

     (13) "Law enforcement officer" means an employee the duties of whose position include

investigation, apprehension, or detention of individuals suspected or convicted of offenses against

the criminal laws of the state, including an employee engaged in such activity who is transferred

or promoted to a supervisory or administrative position. For the purpose of this subdivision,

"detention" includes the duties of employees assigned to guard individuals incarcerated in any

penal institution.

     (14) "Person" includes one or more individuals, partnerships, associations, organizations,

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

     (15) "Religion" includes all aspects of religious observance and practice, as well as belief,

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

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

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

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     (16) "Sexual orientation" means having or being perceived as having an orientation for

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

persons and does not render lawful any conduct prohibited by the criminal laws of this state nor

impose any duty on a religious organization. This definition does not confer legislative approval

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

employment, regardless of that status.

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

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

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

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

     28-5-7.3. Discriminatory practice need not be sole motivating factor.

     An unlawful employment practice may be established in an action or proceeding under

this chapter when the complainant demonstrates that race, color, religion, sex, sexual orientation,

gender identity or expression, disability, age, or country of ancestral origin, or retaliation was a

motivating factor for any employment practice, even though the practice was also motivated by

other factors. Nothing contained in this section shall be construed as requiring direct evidence of

unlawful intent or as limiting the methods of proof of unlawful employment practices under § 28-

5-7.

     SECTION 2. Sections 28-51-1, 28-51-2 and 28-51-3 of the General Laws in Chapter 28-

51 entitled "Sexual Harassment, Education and Training in the Workplace" are hereby amended

to read as follows:

     28-51-1. Definitions.

     (a) As used in this chapter, "Employer" means any entity employing fifty (50) four (4) or

more employees.

     (b) As used in this chapter, "Sexual harassment" means any unwelcome sexual advances

or requests for sexual favors or any other verbal or physical conduct of a sexual nature when:

     (1) Submission to that conduct or those advances or requests is made either explicitly or

implicitly a term or condition of an individual's employment; or

     (2) Submission to or rejection of the conduct or advances or requests by an individual is

used as the basis for employment decisions affecting the individual; or

     (3) The conduct or advances or requests have the purpose or effect of unreasonably

interfering with an individual's work performance or creating an intimidating, hostile, or

offensive working environment.

     28-51-2. Adoption of workplace policy and statement.

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     (a) All employers and employment agencies shall promote a workplace free of sexual

harassment.

     (b) Every employer shall:

     (1) Adopt a policy against sexual harassment that shall include:

     (i) A statement that sexual harassment in the workplace is unlawful;

     (ii) A statement that it is unlawful to retaliate against an employee for filing a complaint

of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment;

     (iii) A description and examples of sexual harassment;

     (iv) A statement of the range of consequences for employees who are found to have

committed sexual harassment;

     (v) A description of the process for filing internal complaints about sexual harassment

and the work addresses and telephone numbers of the person or persons to whom complaints

should be made; and

     (vi) The identity of the appropriate state and federal employment discrimination

enforcement agencies, and directions as to how to contact these agencies.

     (2) Provide to all employees a written copy of the employer's policy against sexual

harassment; provided, that a new employee shall be provided such a copy at the time of his or her

employment.

     (c) Employers are encouraged required to conduct an education and training program for

new employees and members, within one year month of commencement of employment or

membership, which includes at a minimum the information set forth in this section. Employers

are encouraged required to conduct additional training for new supervisory and managerial

employees within one year month of commencement of employment which shall include at a

minimum the information set forth in subsection (b) of this section, the specific responsibilities of

supervisory and managerial employees and the methods that these employees should take to

ensure immediate and appropriate corrective action in addressing sexual harassment complaints.

Employers and appropriate state agencies are encouraged required to cooperate in making this

training available.

     (d) Employers shall provide copies of their written policies on sexual harassment to all

employees upon their request.

     (e) Employers shall be required to maintain copies of their written policies on sexual

harassment at their business premises, and copies of such policies shall be made available to any

state or federal employment discrimination enforcement agency upon request.

     28-51-3. Education and training programs.

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     Employers are encouraged required to conduct an education and training program on

sexual harassment consistent with the aims and purposes of this chapter for all employees,

including, but not limited to supervisory or managerial personnel, on or before September 1, 1997

September 1, 2019.

     SECTION 3. Chapter 28-51 of the General Laws entitled "Sexual Harassment, Education

and Training in the Workplace" is hereby amended by adding thereto the following section:

     28-51-4. Enforcement.

     (a) The commission for human rights is empowered and directed, as hereinafter provided,

to prevent any employer or employment agency from violating any of the provisions of this

chapter; provided, that before instituting a formal hearing, it shall attempt by informal methods of

conference, persuasion and conciliation, to induce compliance with those provisions. Upon the

commission's own initiative or whenever an aggrieved individual or an organization chartered for

the purpose of combating discrimination, such individual or organization being hereinafter

referred to as "the complainant", makes a charge to the commission that any employer or

employment agency hereinafter referred to as "the respondent", has violated or is violating any of

the provisions of this chapter, the commission may proceed in the same manner and with the

same powers as provided in § 28-5-13 and the provisions of §§ 28-5-16 through 28-5-36, as to the

powers, duties and rights of the commission, its members, hearing examiners, the complainant,

and respondent under this section.

     (b) The department of labor and training is empowered and directed, as hereinafter

provided, to prevent any employer or employment agency from violating any of the provisions of

this chapter. The director of labor and training shall have the same powers and duties as set forth

in chapter 12 and chapter 14 of title 28 to investigate, inspect, subpoena, and enforce through

administrative hearings, complaints that allege that an employer or employment agency has

violated or is violating any of the provisions of this chapter.

     (c) The commission and the department of labor shall cooperate in the investigation of

complaints filed under this section when the allegations are within the jurisdiction of both

agencies.

     SECTION 4. This act shall take effect upon passage.

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LC001320

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRACTICES -

- SEXUAL HARASSMENT

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     This act would extend protection to persons employed in domestic service and include

retaliation as an unlawful employment practice. This act would require employers of four (4) or

more employees rather than fifty (50) to comply with the sexual harassment education and

workplace training requirements, conduct such a program for new employees within one month

of the date of employment and for all other employees before September 1, 2019. Enforcement

would be vested in the commission for human rights and/or the department of labor and training.

     This act would take effect upon passage.

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LC001320

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