2023 -- H 5929 SUBSTITUTE A
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LC002142/SUB A
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S TATE OF RHODE IS LAND
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 PRAC TICES
Introduced By: Representatives Tanzi, Boylan, Cruz, Speakman, Donovan, Vella-
Wilkinson, Felix, Hull, Spears, and Potter
Date Introduced: March 01, 2023
Referred To: House Labor
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 1
"Fair Employment Practices" are hereby amended to read as follows: 2
28-5-6. Definitions. 3
When used in this chapter: 4
(1) “Age” means anyone who is at least forty (40) years of age. 5
(2) “Because of sex” or “on the basis of sex” includes, but is not limited to, because of or 6
on the basis of pregnancy, childbirth, or related medical conditions, and women affected by 7
pregnancy, childbirth, or related medical conditions shall be treated the same for all employment 8
related purposes, including receipt of benefits under fringe benefit programs, as other persons not 9
so affected but similar in their ability or inability to work, and nothing in this chapter shall be 10
interpreted to permit otherwise. 11
(3) “Commission” means the Rhode Island commission against discrimination created by 12
this chapter. 13
(4) "Confidential" means to remain secret and not to be disclosed to another person or 14
entity. 15
(4)(5) “Conviction” means, for the purposes of this chapter only, any verdict or finding of 16
guilt after a criminal trial or any plea of guilty or nolo contendere to a criminal charge. 17
(5)(6) “Disability” means a disability as defined in § 42-87-1. 18
(6)(7) “Discriminate” includes segregate or separate. 19
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(7)(8) “Employee” does not include any individual employed by his or her parents, spouse, 1
or child, or in the domestic service of any person. 2
(8)(9)(i) “Employer” includes the state and all political subdivisions of the state and any 3
person in this state employing four (4) or more individuals, and any person acting in the interest of 4
an employer directly or indirectly. 5
(ii) Nothing in this subdivision shall be construed to apply to a religious corporation, 6
association, educational institution, or society with respect to the employment of individuals of its 7
religion to perform work connected with the carrying on of its activities. 8
(9)(10) “Employment agency” includes any person undertaking, with or without 9
compensation, to procure opportunities to work, or to procure, recruit, refer, or place employees. 10
(10)(11) “Firefighter” means an employee the duties of whose position include work 11
connected with the control and extinguishment of fires or the maintenance and use of firefighting 12
apparatus and equipment, including an employee engaged in this activity who is transferred or 13
promoted to a supervisory or administrative position. 14
(11)(12) “Gender identity or expression” includes a person’s actual or perceived gender, 15
as well as a person’s gender identity, gender-related self image, gender-related appearance, or 16
gender-related expression; whether or not that gender identity, gender-related self image, gender-17
related appearance, or gender-related expression is different from that traditionally associated with 18
the person’s sex at birth. 19
(12)(13) “Labor organization” includes any organization that exists for the purpose, in 20
whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms 21
or conditions of employment, or of other mutual aid or protection in relation to employment. 22
(13)(14) “Law enforcement officer” means an employee the duties of whose position 23
include investigation, apprehension, or detention of individuals suspected or convicted of offenses 24
against the criminal laws of the state, including an employee engaged in such activity who is 25
transferred or promoted to a supervisory or administrative position. For the purpose of this 26
subdivision, “detention” includes the duties of employees assigned to guard individua ls 27
incarcerated in any penal institution. 28
(15) "Non-disparagement agreement" means an agreement which restricts an individual 29
from taking any action to include, but not be limited to, speaking or publicizing information that 30
negatively impacts the other party to the agreement to include the reputation, products, services, 31
employees and management of the protected party. 32
(14)(16) “Person” includes one or more individuals, partnerships, associations, 33
organizations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers. 34
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(15)(17) “Religion” includes all aspects of religious observance and practice, as well as 1
belief, unless an employer, union, or employment agency demonstrates that it is unable to 2
reasonably accommodate to an employee’s or prospective employee’s or union member’s religious 3
observance or practice without undue hardship on the conduct of its business. 4
(16)(18) “Sexual orientation” means having or being perceived as having an orientation for 5
heterosexuality, bisexuality, or homosexuality. 6
(17)(19) The terms, as used regarding persons with disabilities: 7
(i) “Auxiliary aids and services” and “reasonable accommodation” shall have the same 8
meaning as those items are defined in § 42-87-1.1; and 9
(ii) “Hardship” means an “undue hardship” as defined in § 42-87-1.1. 10
28-5-7. Unlawful employment practices. 11
It shall be an unlawful employment practice: 12
(1) For any employer: 13
(i) To refuse to hire any applicant for employment because of his or her race or color, 14
religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 15
ancestral origin; 16
(ii) Because of those reasons, to discharge an employee or discriminate against him or her 17
with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any 18
other matter directly or indirectly related to employment. However, if an insurer or employer 19
extends insurance-related benefits to persons other than or in addition to the named employee, 20
nothing in this subdivision shall require those benefits to be offered to unmarried partners of named 21
employees; 22
(iii) In the recruiting of individuals for employment or in hiring them, to utilize any 23
employment agency, placement service, training school or center, labor organization, or any other 24
employee referring source that the employer knows, or has reasonable cause to know, discriminates 25
against individuals because of their race or color, religion, sex, sexual orientation, gender identity 26
or expression, disability, age, or country of ancestral origin; 27
(iv) To refuse to reasonably accommodate an employee’s or prospective employee’s 28
disability unless the employer can demonstrate that the accommodation would pose a hardship on 29
the employer’s program, enterprise, or business; or 30
(v) When an employee has presented to the employer an internal complaint alleging 31
harassment in the workplace on the basis of race or color, religion, sex, disability, age, sexual 32
orientation, gender identity or expression, or country of ancestral origin, to refuse to disclose in a 33
timely manner in writing to that employee the disposition of the complaint, including a description 34
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of any action taken in resolution of the complaint; provided, however, no other personnel 1
information shall be disclosed to the complainant; or 2
(vi) To require an employee as a condition of employment, to execute a nondisclosure 3
agreement that requires alleged violations of civil rights remain confidential, or a non-4
disparagement agreement concerning alleged violations of civil rights or alleged unlawful conduct, 5
or any agreement with a clause that requires alleged violations of civil rights remain confidential. 6
Any contract provision in violation of this subsection shall be void as a violation of public policy. 7
(2)(i) For any employment agency to fail or refuse to properly classify or refer for 8
employment or otherwise discriminate against any individual because of his or her race or color, 9
religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 10
ancestral origin; or 11
(ii) For any employment agency, placement service, training school or center, labor 12
organization, or any other employee referring source to comply with an employer’s request for the 13
referral of job applicants if the request indicates, either directly or indirectly, that the employer will 14
not afford full and equal employment opportunities to individuals regardless of their race or color, 15
religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 16
ancestral origin; 17
(3) For any labor organization: 18
(i) To deny full and equal membership rights to any applicant for membership because of 19
his or her race or color, religion, sex, sexual orientation, gender identity or expression, disability, 20
age, or country of ancestral origin; 21
(ii) Because of those reasons, to deny a member full and equal membership rights, expel 22
him or her from membership, or otherwise discriminate in any manner against him or her with 23
respect to his or her hire, tenure, compensation, terms, conditions or privileges of employment, or 24
any other matter directly or indirectly related to membership or employment, whether or not 25
authorized or required by the constitution or bylaws of the labor organization or by a collective 26
labor agreement or other contract; 27
(iii) To fail or refuse to classify properly or refer for employment, or otherwise to 28
discriminate against any member because of his or her race or color, religion, sex, sexual 29
orientation, gender identity or expression, disability, age, or country of ancestral origin; or 30
(iv) To refuse to reasonably accommodate a member’s or prospective member’s disability 31
unless the labor organization can demonstrate that the accommodation would pose a hardship on 32
the labor organization’s program, enterprise, or business; 33
(4) Except where based on a bona fide occupational qualification certified by the 34
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commission or where necessary to comply with any federal mandated affirmative action programs, 1
for any employer or employment agency, labor organization, placement service, training school or 2
center, or any other employee referring source, prior to employment or admission to membership 3
of any individual, to: 4
(i) Elicit, or attempt to elicit, any information directly or indirectly pertaining to his or her 5
race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or 6
country of ancestral origin; 7
(ii) Make or keep a record of his or her race or color, religion, sex, sexual orientation, 8
gender identity or expression, disability, age, or country of ancestral origin; 9
(iii) Use any form of application for employment, or personnel or membership blank 10
containing questions or entries directly or indirectly pertaining to race or color, religion, sex, sexual 11
orientation, gender identity or expression, disability, age, or country of ancestral origin; 12
(iv) Print or publish, or cause to be printed or published, any notice or advertisement 13
relating to employment or membership indicating any preference, limitation, specification, or 14
discrimination based upon race or color, religion, sex, sexual orientation, gender identity or 15
expression, disability, age, or country of ancestral origin; or 16
(v) Establish, announce, or follow a policy of denying or limiting, through a quota system 17
or otherwise, employment or membership opportunities of any group because of the race or color, 18
religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 19
ancestral origin of that group; 20
(5) For any employer or employment agency, labor organization, placement service, 21
training school or center, or any other employee referring source to discriminate in any manner 22
against any individual because he or she has opposed any practice forbidden by this chapter, or 23
because he or she has made a charge, testified, or assisted in any manner in any investigation, 24
proceeding, or hearing under this chapter; 25
(6) For any person, whether or not an employer, employment agency, labor organization, 26
or employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to 27
be an unlawful employment practice, or to obstruct or prevent any person from complying with the 28
provisions of this chapter or any order issued pursuant to this chapter, or to attempt directly or 29
indirectly to commit any act declared by this section to be an unlawful employment practice; 30
(7) For any employer to include on any application for employment, except applications 31
for law enforcement agency positions or positions related to law enforcement agencies, a question 32
inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been 33
arrested, charged with or convicted of any crime; provided, that: 34
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(i) If a federal or state law or regulation creates a mandatory or presumptive disqualification 1
from employment based on a person’s conviction of one or more specified criminal offenses, an 2
employer may include a question or otherwise inquire whether the applicant has ever been 3
convicted of any of those offenses; or 4
(ii) If a standard fidelity bond or an equivalent bond is required for the position for which 5
the applicant is seeking employment and his or her conviction of one or more specified criminal 6
offenses would disqualify the applicant from obtaining such a bond, an employer may include a 7
question or otherwise inquire whether the applicant has ever been convicted of any of those 8
offenses; and 9
(iii) Notwithstanding, any employer may ask an applicant for information about his or her 10
criminal convictions at the first interview or thereafter, in accordance with all applicable state and 11
federal laws; 12
(8)(i) For any person who or that, on June 7, 1988, is providing either by direct payment 13
or by making contributions to a fringe benefit fund or insurance program, benefits in violation with 14
§§ 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 15
there is an applicable collective bargaining agreement in effect on June 7, 1988, until the 16
termination of that agreement, in order to come into compliance with §§ 28-5-6, 28-5-7 and 28-5-17
38, to reduce the benefits or the compensation provided any employee on June 7, 1988, either 18
directly or by failing to provide sufficient contributions to a fringe benefit fund or insurance 19
program. 20
(ii) Where the costs of these benefits on June 7, 1988, are apportioned between employers 21
and employees, the payments or contributions required to comply with §§ 28-5-6, 28-5-7 and 28-22
5-38 may be made by employers and employees in the same proportion. 23
(iii) Nothing in this section shall prevent the readjustment of benefits or compensation for 24
reasons unrelated to compliance with §§ 28-5-6, 28-5-7 and 28-5-38. 25
SECTION 2. This act shall take effect upon passage. 26
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EXPLANATION
BY THE LEGISLATIVE COUNCIL
OF
A N A C T
RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRAC TICES
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This act would prohibit an employer from requiring an employee to execute a 1
nondisclosure agreement or non-disparagement agreement, regarding alleged violations of civil 2
rights or criminal conduct, as a condition of employment. It would also add the definition of 3
"confidential" to the fair employment practices statute. 4
This act would take effect upon passage. 5
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