2023 -- S 0342 AS AMENDED

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LC001065

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRACTICES

     Introduced By: Senators DiMario, Euer, Murray, Gu, Valverde, Lauria, Ujifusa,

     Date Introduced: February 16, 2023

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 28-5-6 and 28-5-7 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” includes, but is 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) "Confidential" means to remain secret and not to be disclosed to another person or

entity.

     (4)(5) “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)(6) “Disability” means a disability as defined in § 42-87-1.

     (6)(7) “Discriminate” includes segregate or separate.

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

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

     (8)(9)(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)(10) “Employment agency” includes any person undertaking, with or without

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

     (10)(11) “Firefighter” means an employee the duties of whose position include 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)(12) “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)(13) “Labor organization” includes any organization that 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)(14) “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.

     (15) "Non-disparagement agreement" means an agreement which restricts an individual

from taking any action to include, but not be limited to, speaking or publicizing information that

negatively impacts the other party to the agreement to include the reputation, products, services,

employees and management of the protected party.

     (14)(16) “Person” includes one or more individuals, partnerships, associations,

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

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     (15)(17) “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.

     (16)(18) “Sexual orientation” means having or being perceived as having an orientation for

heterosexuality, bisexuality, or homosexuality.

     (17)(19) 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. 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 that 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

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

information shall be disclosed to the complainant; or

     (vi) To require an employee as a condition of employment, to execute a nondisclosure

agreement that requires alleged violations of civil rights remain confidential, or a non-

disparagement agreement concerning alleged violations of civil rights or alleged unlawful conduct,

or any agreement with a clause that requires alleged violations of civil rights remain confidential.

Any contract provision in violation of this subsection shall be void as a violation of public policy.

     (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

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

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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

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:

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     (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 or that, 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.

     SECTION 2. 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 an employer from requiring an employee to execute a

nondisclosure agreement or non-disparagement agreement, regarding alleged violations of civil

rights or criminal conduct, as a condition of employment. It would also add the definition of

"confidential" to the fair employment practices statute.

     This act would take effect upon passage.

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