Chapter 413
2013 -- S 0357 SUBSTITUTE A
Enacted 07/15/13
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
It is enacted by the
General Assembly as follows:
SECTION 1. Section 28-5-6 of the General Laws in Chapter
28-5 entitled "Fair
Employment Practices"
is 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
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.
(4)(5)
"Disability" means a disability as defined in section 42-87-1.
(5)(6)
"Discriminate" includes segregate or separate.
(6)(7)
"Employee" does not include any individual employed by his or her
parents,
spouse, or child, or in the domestic service of any person.
(7)(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.
(8)(9)
"Employment agency" includes any person undertaking with or without
compensation to procure opportunities to work, or to procure,
recruit, refer, or place employees.
(9)(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.
(10)(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.
(11)(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.
(12)(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.
(13)(14)
"Person" includes one or more individuals, partnerships,
associations,
organizations, corporations, legal representatives, trustees,
trustees in bankruptcy, or receivers.
(14)(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.
(15)(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.
(16)(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 section 42-87-1.1; and
(ii)
"Hardship" means an "undue hardship" as defined in section
42-87-1.1.
SECTION 2. 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
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
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, or
charged with or convicted of any crime; provided, that nothing in
this subdivision
shall prevent an employer from inquiring whether the
applicant has ever been convicted of any
crime; :
(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
sections 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 sections 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 sections 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 sections 28-5-6,
28-5-7 and 28-5-38.
SECTION 3. This act shall take effect on January 1, 2014.
=======
LC01392/SUB A/4
=======