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| 7 | 7 | | LC001065 |
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| 8 | 8 | | ======== |
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| 9 | 9 | | S TATE OF RHODE IS LAND |
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| 10 | 10 | | IN GENERAL ASSEMBLY |
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| 11 | 11 | | JANUARY SESSION, A.D. 2023 |
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| 12 | 12 | | ____________ |
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| 13 | 13 | | |
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| 14 | 14 | | A N A C T |
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| 15 | 15 | | RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRAC TICES |
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| 16 | 16 | | Introduced By: Senators DiMario, Euer, Murray, Gu, Valverde, Lauria, Ujifusa, |
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| 17 | 17 | | LaMountain, and Lawson |
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| 18 | 18 | | Date Introduced: February 16, 2023 |
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| 19 | 19 | | Referred To: Senate Judiciary |
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| 20 | 20 | | |
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| 21 | 21 | | |
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| 22 | 22 | | It is enacted by the General Assembly as follows: |
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| 23 | 23 | | SECTION 1. Sections 28-5-6 and 28-5-7 of the General Laws in Chapter 28-5 entitled 1 |
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| 24 | 24 | | "Fair Employment Practices" are hereby amended to read as follows: 2 |
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| 25 | 25 | | 28-5-6. Definitions. 3 |
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| 26 | 26 | | When used in this chapter: 4 |
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| 27 | 27 | | (1) “Age” means anyone who is at least forty (40) years of age. 5 |
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| 28 | 28 | | (2) “Because of sex” or “on the basis of sex” includes, but is not limited to, because of or 6 |
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| 29 | 29 | | on the basis of pregnancy, childbirth, or related medical conditions, and women affected by 7 |
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| 30 | 30 | | pregnancy, childbirth, or related medical conditions shall be treated the same for all employment 8 |
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| 31 | 31 | | related purposes, including receipt of benefits under fringe benefit programs, as other persons not 9 |
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| 32 | 32 | | so affected but similar in their ability or inability to work, and nothing in this chapter shall be 10 |
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| 33 | 33 | | interpreted to permit otherwise. 11 |
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| 34 | 34 | | (3) “Commission” means the Rhode Island commission against discrimination created by 12 |
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| 35 | 35 | | this chapter. 13 |
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| 36 | 36 | | (4) "Confidential" means to remain secret and not to be disclosed to another person or 14 |
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| 37 | 37 | | entity. 15 |
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| 38 | 38 | | (4)(5) “Conviction” means, for the purposes of this chapter only, any verdict or finding of 16 |
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| 39 | 39 | | guilt after a criminal trial or any plea of guilty or nolo contendere to a criminal charge. 17 |
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| 40 | 40 | | (5)(6) “Disability” means a disability as defined in § 42-87-1. 18 |
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| 41 | 41 | | (6)(7) “Discriminate” includes segregate or separate. 19 |
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| 42 | 42 | | |
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| 43 | 43 | | |
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| 44 | 44 | | LC001065 - Page 2 of 7 |
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| 45 | 45 | | (7)(8) “Employee” does not include any individual employed by his or her parents, spouse, 1 |
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| 46 | 46 | | or child, or in the domestic service of any person. 2 |
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| 47 | 47 | | (8)(9)(i) “Employer” includes the state and all political subdivisions of the state and any 3 |
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| 48 | 48 | | person in this state employing four (4) or more individuals, and any person acting in the interest of 4 |
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| 49 | 49 | | an employer directly or indirectly. 5 |
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| 50 | 50 | | (ii) Nothing in this subdivision shall be construed to apply to a religious corporation, 6 |
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| 51 | 51 | | association, educational institution, or society with respect to the employment of individuals of its 7 |
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| 52 | 52 | | religion to perform work connected with the carrying on of its activities. 8 |
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| 53 | 53 | | (9)(10) “Employment agency” includes any person undertaking, with or without 9 |
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| 54 | 54 | | compensation, to procure opportunities to work, or to procure, recruit, refer, or place employees. 10 |
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| 55 | 55 | | (10)(11) “Firefighter” means an employee the duties of whose position include work 11 |
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| 56 | 56 | | connected with the control and extinguishment of fires or the maintenance and use of firefighting 12 |
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| 57 | 57 | | apparatus and equipment, including an employee engaged in this activity who is transferred or 13 |
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| 58 | 58 | | promoted to a supervisory or administrative position. 14 |
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| 59 | 59 | | (11)(12) “Gender identity or expression” includes a person’s actual or perceived gender, 15 |
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| 60 | 60 | | as well as a person’s gender identity, gender-related self image, gender-related appearance, or 16 |
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| 61 | 61 | | gender-related expression; whether or not that gender identity, gender-related self image, gender-17 |
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| 62 | 62 | | related appearance, or gender-related expression is different from that traditionally associated with 18 |
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| 63 | 63 | | the person’s sex at birth. 19 |
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| 64 | 64 | | (12)(13) “Labor organization” includes any organization that exists for the purpose, in 20 |
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| 65 | 65 | | whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms 21 |
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| 66 | 66 | | or conditions of employment, or of other mutual aid or protection in relation to employment. 22 |
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| 67 | 67 | | (13)(14) “Law enforcement officer” means an employee the duties of whose position 23 |
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| 68 | 68 | | include investigation, apprehension, or detention of individuals suspected or convicted of offenses 24 |
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| 69 | 69 | | against the criminal laws of the state, including an employee engaged in such activity who is 25 |
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| 70 | 70 | | transferred or promoted to a supervisory or administrative position. For the purpose of this 26 |
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| 71 | 71 | | subdivision, “detention” includes the duties of employees assigned to guard individua ls 27 |
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| 72 | 72 | | incarcerated in any penal institution. 28 |
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| 73 | 73 | | (15) "Non-disparagement agreement" means an agreement which restricts an individual 29 |
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| 74 | 74 | | from taking any action to include, but not be limited to, speaking or publicizing information that 30 |
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| 75 | 75 | | negatively impacts the other party to the agreement to include the reputation, products, services, 31 |
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| 76 | 76 | | employees and management of the protected party. 32 |
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| 77 | 77 | | (14)(16) “Person” includes one or more individuals, partnerships, associations, 33 |
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| 78 | 78 | | organizations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers. 34 |
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| 79 | 79 | | |
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| 80 | 80 | | |
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| 81 | 81 | | LC001065 - Page 3 of 7 |
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| 82 | 82 | | (15)(17) “Religion” includes all aspects of religious observance and practice, as well as 1 |
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| 83 | 83 | | belief, unless an employer, union, or employment agency demonstrates that it is unable to 2 |
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| 84 | 84 | | reasonably accommodate to an employee’s or prospective employee’s or union member’s religious 3 |
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| 85 | 85 | | observance or practice without undue hardship on the conduct of its business. 4 |
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| 86 | 86 | | (16)(18) “Sexual orientation” means having or being perceived as having an orientation for 5 |
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| 87 | 87 | | heterosexuality, bisexuality, or homosexuality. 6 |
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| 88 | 88 | | (17)(19) The terms, as used regarding persons with disabilities: 7 |
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| 89 | 89 | | (i) “Auxiliary aids and services” and “reasonable accommodation” shall have the same 8 |
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| 90 | 90 | | meaning as those items are defined in § 42-87-1.1; and 9 |
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| 91 | 91 | | (ii) “Hardship” means an “undue hardship” as defined in § 42-87-1.1. 10 |
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| 92 | 92 | | 28-5-7. Unlawful employment practices. 11 |
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| 93 | 93 | | It shall be an unlawful employment practice: 12 |
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| 94 | 94 | | (1) For any employer: 13 |
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| 95 | 95 | | (i) To refuse to hire any applicant for employment because of his or her race or color, 14 |
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| 96 | 96 | | religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 15 |
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| 97 | 97 | | ancestral origin; 16 |
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| 98 | 98 | | (ii) Because of those reasons, to discharge an employee or discriminate against him or her 17 |
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| 99 | 99 | | with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any 18 |
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| 100 | 100 | | other matter directly or indirectly related to employment. However, if an insurer or employer 19 |
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| 101 | 101 | | extends insurance-related benefits to persons other than or in addition to the named employee, 20 |
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| 102 | 102 | | nothing in this subdivision shall require those benefits to be offered to unmarried partners of named 21 |
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| 103 | 103 | | employees; 22 |
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| 104 | 104 | | (iii) In the recruiting of individuals for employment or in hiring them, to utilize any 23 |
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| 105 | 105 | | employment agency, placement service, training school or center, labor organization, or any other 24 |
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| 106 | 106 | | employee referring source that the employer knows, or has reasonable cause to know, discriminates 25 |
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| 107 | 107 | | against individuals because of their race or color, religion, sex, sexual orientation, gender identity 26 |
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| 108 | 108 | | or expression, disability, age, or country of ancestral origin; 27 |
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| 109 | 109 | | (iv) To refuse to reasonably accommodate an employee’s or prospective employee’s 28 |
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| 110 | 110 | | disability unless the employer can demonstrate that the accommodation would pose a hardship on 29 |
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| 111 | 111 | | the employer’s program, enterprise, or business; or 30 |
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| 112 | 112 | | (v) When an employee has presented to the employer an internal complaint alleging 31 |
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| 113 | 113 | | harassment in the workplace on the basis of race or color, religion, sex, disability, age, sexual 32 |
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| 114 | 114 | | orientation, gender identity or expression, or country of ancestral origin, to refuse to disclose in a 33 |
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| 115 | 115 | | timely manner in writing to that employee the disposition of the complaint, including a description 34 |
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| 116 | 116 | | |
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| 117 | 117 | | |
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| 118 | 118 | | LC001065 - Page 4 of 7 |
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| 119 | 119 | | of any action taken in resolution of the complaint; provided, however, no other personnel 1 |
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| 120 | 120 | | information shall be disclosed to the complainant; or 2 |
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| 121 | 121 | | (vi) To require an employee as a condition of employment, to execute a nondisclosure 3 |
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| 126 | 126 | | (2)(i) For any employment agency to fail or refuse to properly classify or refer for 8 |
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| 127 | 127 | | employment or otherwise discriminate against any individual because of his or her race or color, 9 |
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| 128 | 128 | | religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 10 |
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| 129 | 129 | | ancestral origin; or 11 |
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| 130 | 130 | | (ii) For any employment agency, placement service, training school or center, labor 12 |
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| 131 | 131 | | organization, or any other employee referring source to comply with an employer’s request for the 13 |
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| 132 | 132 | | referral of job applicants if the request indicates, either directly or indirectly, that the employer will 14 |
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| 133 | 133 | | not afford full and equal employment opportunities to individuals regardless of their race or color, 15 |
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| 134 | 134 | | religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 16 |
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| 135 | 135 | | ancestral origin; 17 |
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| 136 | 136 | | (3) For any labor organization: 18 |
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| 137 | 137 | | (i) To deny full and equal membership rights to any applicant for membership because of 19 |
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| 138 | 138 | | his or her race or color, religion, sex, sexual orientation, gender identity or expression, disability, 20 |
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| 139 | 139 | | age, or country of ancestral origin; 21 |
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| 140 | 140 | | (ii) Because of those reasons, to deny a member full and equal membership rights, expel 22 |
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| 141 | 141 | | him or her from membership, or otherwise discriminate in any manner against him or her with 23 |
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| 142 | 142 | | respect to his or her hire, tenure, compensation, terms, conditions or privileges of employment, or 24 |
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| 143 | 143 | | any other matter directly or indirectly related to membership or employment, whether or not 25 |
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| 144 | 144 | | authorized or required by the constitution or bylaws of the labor organization or by a collective 26 |
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| 145 | 145 | | labor agreement or other contract; 27 |
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| 146 | 146 | | (iii) To fail or refuse to classify properly or refer for employment, or otherwise to 28 |
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| 147 | 147 | | discriminate against any member because of his or her race or color, religion, sex, sexual 29 |
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| 148 | 148 | | orientation, gender identity or expression, disability, age, or country of ancestral origin; or 30 |
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| 149 | 149 | | (iv) To refuse to reasonably accommodate a member’s or prospective member’s disability 31 |
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| 150 | 150 | | unless the labor organization can demonstrate that the accommodation would pose a hardship on 32 |
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| 151 | 151 | | the labor organization’s program, enterprise, or business; 33 |
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| 152 | 152 | | (4) Except where based on a bona fide occupational qualification certified by the 34 |
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| 153 | 153 | | |
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| 154 | 154 | | |
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| 155 | 155 | | LC001065 - Page 5 of 7 |
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| 156 | 156 | | commission or where necessary to comply with any federal mandated affirmative action programs, 1 |
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| 157 | 157 | | for any employer or employment agency, labor organization, placement service, training school or 2 |
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| 158 | 158 | | center, or any other employee referring source, prior to employment or admission to membership 3 |
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| 159 | 159 | | of any individual, to: 4 |
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| 160 | 160 | | (i) Elicit, or attempt to elicit, any information directly or indirectly pertaining to his or her 5 |
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| 161 | 161 | | race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or 6 |
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| 162 | 162 | | country of ancestral origin; 7 |
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| 163 | 163 | | (ii) Make or keep a record of his or her race or color, religion, sex, sexual orientation, 8 |
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| 164 | 164 | | gender identity or expression, disability, age, or country of ancestral origin; 9 |
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| 165 | 165 | | (iii) Use any form of application for employment, or personnel or membership blank 10 |
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| 166 | 166 | | containing questions or entries directly or indirectly pertaining to race or color, religion, sex, sexual 11 |
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| 167 | 167 | | orientation, gender identity or expression, disability, age, or country of ancestral origin; 12 |
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| 168 | 168 | | (iv) Print or publish, or cause to be printed or published, any notice or advertisement 13 |
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| 169 | 169 | | relating to employment or membership indicating any preference, limitation, specification, or 14 |
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| 170 | 170 | | discrimination based upon race or color, religion, sex, sexual orientation, gender identity or 15 |
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| 171 | 171 | | expression, disability, age, or country of ancestral origin; or 16 |
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| 172 | 172 | | (v) Establish, announce, or follow a policy of denying or limiting, through a quota system 17 |
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| 173 | 173 | | or otherwise, employment or membership opportunities of any group because of the race or color, 18 |
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| 174 | 174 | | religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 19 |
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| 175 | 175 | | ancestral origin of that group; 20 |
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| 176 | 176 | | (5) For any employer or employment agency, labor organization, placement service, 21 |
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| 177 | 177 | | training school or center, or any other employee referring source to discriminate in any manner 22 |
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| 178 | 178 | | against any individual because he or she has opposed any practice forbidden by this chapter, or 23 |
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| 179 | 179 | | because he or she has made a charge, testified, or assisted in any manner in any investigation, 24 |
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| 180 | 180 | | proceeding, or hearing under this chapter; 25 |
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| 181 | 181 | | (6) For any person, whether or not an employer, employment agency, labor organization, 26 |
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| 182 | 182 | | or employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to 27 |
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| 183 | 183 | | be an unlawful employment practice, or to obstruct or prevent any person from complying with the 28 |
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| 184 | 184 | | provisions of this chapter or any order issued pursuant to this chapter, or to attempt directly or 29 |
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| 185 | 185 | | indirectly to commit any act declared by this section to be an unlawful employment practice; 30 |
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| 186 | 186 | | (7) For any employer to include on any application for employment, except applications 31 |
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| 187 | 187 | | for law enforcement agency positions or positions related to law enforcement agencies, a question 32 |
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| 188 | 188 | | inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been 33 |
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| 189 | 189 | | arrested, charged with or convicted of any crime; provided, that: 34 |
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| 190 | 190 | | |
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| 191 | 191 | | |
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| 192 | 192 | | LC001065 - Page 6 of 7 |
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| 193 | 193 | | (i) If a federal or state law or regulation creates a mandatory or presumptive disqualification 1 |
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| 194 | 194 | | from employment based on a person’s conviction of one or more specified criminal offenses, an 2 |
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| 195 | 195 | | employer may include a question or otherwise inquire whether the applicant has ever been 3 |
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| 196 | 196 | | convicted of any of those offenses; or 4 |
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| 197 | 197 | | (ii) If a standard fidelity bond or an equivalent bond is required for the position for which 5 |
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| 198 | 198 | | the applicant is seeking employment and his or her conviction of one or more specified criminal 6 |
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| 199 | 199 | | offenses would disqualify the applicant from obtaining such a bond, an employer may include a 7 |
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| 200 | 200 | | question or otherwise inquire whether the applicant has ever been convicted of any of those 8 |
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| 201 | 201 | | offenses; and 9 |
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| 202 | 202 | | (iii) Notwithstanding, any employer may ask an applicant for information about his or her 10 |
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| 203 | 203 | | criminal convictions at the first interview or thereafter, in accordance with all applicable state and 11 |
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| 204 | 204 | | federal laws; 12 |
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| 205 | 205 | | (8)(i) For any person who or that, on June 7, 1988, is providing either by direct payment 13 |
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| 206 | 206 | | or by making contributions to a fringe benefit fund or insurance program, benefits in violation with 14 |
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| 207 | 207 | | §§ 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 |
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| 208 | 208 | | there is an applicable collective bargaining agreement in effect on June 7, 1988, until the 16 |
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| 209 | 209 | | termination of that agreement, in order to come into compliance with §§ 28-5-6, 28-5-7 and 28-5-17 |
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| 210 | 210 | | 38, to reduce the benefits or the compensation provided any employee on June 7, 1988, either 18 |
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| 211 | 211 | | directly or by failing to provide sufficient contributions to a fringe benefit fund or insurance 19 |
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| 212 | 212 | | program. 20 |
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| 213 | 213 | | (ii) Where the costs of these benefits on June 7, 1988, are apportioned between employers 21 |
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| 214 | 214 | | and employees, the payments or contributions required to comply with §§ 28-5-6, 28-5-7 and 28-22 |
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| 215 | 215 | | 5-38 may be made by employers and employees in the same proportion. 23 |
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| 216 | 216 | | (iii) Nothing in this section shall prevent the readjustment of benefits or compensation for 24 |
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| 217 | 217 | | reasons unrelated to compliance with §§ 28-5-6, 28-5-7 and 28-5-38. 25 |
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| 218 | 218 | | SECTION 2. This act shall take effect upon passage. 26 |
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| 220 | 220 | | LC001065 |
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| 223 | 223 | | |
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| 224 | 224 | | LC001065 - Page 7 of 7 |
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| 225 | 225 | | EXPLANATION |
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| 226 | 226 | | BY THE LEGISLATIVE COUNCIL |
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| 227 | 227 | | OF |
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| 228 | 228 | | A N A C T |
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| 229 | 229 | | RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRAC TICES |
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| 230 | 230 | | *** |
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| 231 | 231 | | This act would prohibit an employer from requiring an employee to execute a 1 |
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| 232 | 232 | | nondisclosure agreement or non-disparagement agreement, regarding alleged violations of civil 2 |
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| 233 | 233 | | rights or criminal conduct, as a condition of employment. It would also add the definition of 3 |
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| 234 | 234 | | "confidential" to the fair employment practices statute. 4 |
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| 235 | 235 | | This act would take effect upon passage. 5 |
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| 237 | 237 | | LC001065 |
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| 238 | 238 | | ======== |
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