UT
Utah House Bill HB0428

Utah 2023 Regular Session

Utah House Bill HB0428 Compare Versions

Only one version of the bill is available at this time.
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11 H.B. 428
22 LEGISLATIVE GENERAL COUNSEL
33 6 Approved for Filing: M. Curtis 6
44 6 02-09-23 11:39 AM 6
55 H.B. 428
66 1 LABOR AND MILITARY TRAINING REQUIREMENT
77 2 LIMITATION
88 3 2023 GENERAL SESSION
99 4 STATE OF UTAH
1010 5 Chief Sponsor: Tim Jimenez
1111 6 Senate Sponsor: ____________
1212 7
1313 8LONG TITLE
1414 9General Description:
1515 10 This bill prohibits, in certain employment and military contexts, certain training or
1616 11other requirements that compel or require adherence to or belief in certain concepts.
1717 12Highlighted Provisions:
1818 13 This bill:
1919 14 <prohibits, for purposes of employment discrimination and for the Utah National
2020 15Guard and the Utah Department of Veterans and Military Affairs, training or other
2121 16requirements that compel or require adherence to or belief in certain concepts;
2222 17 <clarifies that the prohibition does not prohibit certain objective discussions;
2323 18 <provides for severability; and
2424 19 <makes technical and conforming changes.
2525 20Money Appropriated in this Bill:
2626 21 None
2727 22Other Special Clauses:
2828 23 This bill provides a special effective date.
2929 24Utah Code Sections Affected:
3030 25AMENDS:
3131 26 34A-5-106, as last amended by Laws of Utah 2016, Chapter 330
3232 27 39A-1-201, as renumbered and amended by Laws of Utah 2022, Chapter 373
3333 *HB0428* H.B. 428 02-09-23 11:39 AM
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3535 28
3636 29Be it enacted by the Legislature of the state of Utah:
3737 30 Section 1. Section 34A-5-106 is amended to read:
3838 31 34A-5-106. Discriminatory or prohibited employment practices -- Permitted
3939 32practices.
4040 33 (1) It is a discriminatory or prohibited employment practice to take an action described
4141 34in Subsections (1)(a) through [(g)] (h).
4242 35 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate a
4343 36person, or to retaliate against, harass, or discriminate in matters of compensation or in terms,
4444 37privileges, and conditions of employment against a person otherwise qualified, because of:
4545 38 (A) race;
4646 39 (B) color;
4747 40 (C) sex;
4848 41 (D) pregnancy, childbirth, or pregnancy-related conditions;
4949 42 (E) age, if the individual is 40 years of age or older;
5050 43 (F) religion;
5151 44 (G) national origin;
5252 45 (H) disability;
5353 46 (I) sexual orientation; or
5454 47 (J) gender identity.
5555 48 (ii) A person may not be considered "otherwise qualified," unless that person possesses
5656 49the following required by an employer for any particular job, job classification, or position:
5757 50 (A) education;
5858 51 (B) training;
5959 52 (C) ability, with or without reasonable accommodation;
6060 53 (D) moral character;
6161 54 (E) integrity;
6262 55 (F) disposition to work;
6363 56 (G) adherence to reasonable rules and regulations; and
6464 57 (H) other job related qualifications required by an employer.
6565 58 (iii) (A) As used in this chapter, "to discriminate in matters of compensation" means 02-09-23 11:39 AM H.B. 428
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6767 59the payment of differing wages or salaries to employees having substantially equal experience,
6868 60responsibilities, and skill for the particular job.
6969 61 (B) Notwithstanding Subsection (1)(a)(iii)(A):
7070 62 (I) nothing in this chapter prevents an increase in pay as a result of longevity with the
7171 63employer, if the salary increase is uniformly applied and available to all employees on a
7272 64substantially proportional basis; and
7373 65 (II) nothing in this section prohibits an employer and employee from agreeing to a rate
7474 66of pay or work schedule designed to protect the employee from loss of Social Security payment
7575 67or benefits if the employee is eligible for those payments.
7676 68 (b) An employment agency may not:
7777 69 (i) refuse to list and properly classify for employment, or refuse to refer an individual
7878 70for employment, in a known available job for which the individual is otherwise qualified,
7979 71because of:
8080 72 (A) race;
8181 73 (B) color;
8282 74 (C) sex;
8383 75 (D) pregnancy, childbirth, or pregnancy-related conditions;
8484 76 (E) religion;
8585 77 (F) national origin;
8686 78 (G) age, if the individual is 40 years of age or older;
8787 79 (H) disability;
8888 80 (I) sexual orientation; or
8989 81 (J) gender identity; or
9090 82 (ii) comply with a request from an employer for referral of an applicant for
9191 83employment if the request indicates either directly or indirectly that the employer discriminates
9292 84in employment on account of:
9393 85 (A) race;
9494 86 (B) color;
9595 87 (C) sex;
9696 88 (D) pregnancy, childbirth, or pregnancy-related conditions;
9797 89 (E) religion; H.B. 428 02-09-23 11:39 AM
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9999 90 (F) national origin;
100100 91 (G) age, if the individual is 40 years of age or older;
101101 92 (H) disability;
102102 93 (I) sexual orientation; or
103103 94 (J) gender identity.
104104 95 (c) (i) A labor organization may not for a reason listed in Subsection (1)(c)(ii):
105105 96 (A) exclude an individual otherwise qualified from full membership rights in the labor
106106 97organization;
107107 98 (B) expel the individual from membership in the labor organization; or
108108 99 (C) otherwise discriminate against or harass a member of the labor organization in full
109109 100employment of work opportunity, or representation.
110110 101 (ii) A labor organization may not take an action listed in this Subsection (1)(c) because
111111 102of:
112112 103 (A) race;
113113 104 (B) sex;
114114 105 (C) pregnancy, childbirth, or pregnancy-related conditions;
115115 106 (D) religion;
116116 107 (E) national origin;
117117 108 (F) age, if the individual is 40 years of age or older;
118118 109 (G) disability;
119119 110 (H) sexual orientation; or
120120 111 (I) gender identity.
121121 112 (d) (i) Unless based upon a bona fide occupational qualification, or required by and
122122 113given to an agency of government for a security reason, an employer, employment agency, or
123123 114labor organization may not do the following if the statement, advertisement, publication, form,
124124 115or inquiry violates Subsection (1)(d)(ii):
125125 116 (A) print, circulate, or cause to be printed or circulated a statement, advertisement, or
126126 117publication;
127127 118 (B) use a form of application for employment or membership; or
128128 119 (C) make any inquiry in connection with prospective employment or membership.
129129 120 (ii) This Subsection (1)(d) applies to a statement, advertisement, publication, form, or 02-09-23 11:39 AM H.B. 428
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131131 121inquiry that directly expresses a limitation, specification, or discrimination as to:
132132 122 (A) race;
133133 123 (B) color;
134134 124 (C) religion;
135135 125 (D) sex;
136136 126 (E) pregnancy, childbirth, or pregnancy-related conditions;
137137 127 (F) national origin;
138138 128 (G) age, if the individual is 40 years of age or older;
139139 129 (H) disability;
140140 130 (I) sexual orientation; or
141141 131 (J) gender identity.
142142 132 (e) A person, whether or not an employer, an employment agency, a labor organization,
143143 133or an employee or member of an employer, employment agency, or labor organization, may
144144 134not:
145145 135 (i) aid, incite, compel, or coerce the doing of an act defined in this section to be a
146146 136discriminatory or prohibited employment practice;
147147 137 (ii) obstruct or prevent a person from complying with this chapter, or any order issued
148148 138under this chapter; or
149149 139 (iii) attempt, either directly or indirectly, to commit an act prohibited in this section.
150150 140 (f) (i) An employer, labor organization, joint apprenticeship committee, or vocational
151151 141school providing, coordinating, or controlling an apprenticeship program or providing,
152152 142coordinating, or controlling an on-the-job-training program, instruction, training, or retraining
153153 143program may not:
154154 144 (A) deny to, or withhold from, any qualified person the right to be admitted to or
155155 145participate in an apprenticeship training program, on-the-job-training program, or other
156156 146occupational instruction, training, or retraining program because of:
157157 147 (I) race;
158158 148 (II) color;
159159 149 (III) sex;
160160 150 (IV) pregnancy, childbirth, or pregnancy-related conditions;
161161 151 (V) religion; H.B. 428 02-09-23 11:39 AM
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163163 152 (VI) national origin;
164164 153 (VII) age, if the individual is 40 years of age or older;
165165 154 (VIII) disability;
166166 155 (IX) sexual orientation; or
167167 156 (X) gender identity;
168168 157 (B) discriminate against or harass a qualified person in that person's pursuit of a
169169 158program described in Subsection (1)(f)(i)(A) because of:
170170 159 (I) race;
171171 160 (II) color;
172172 161 (III) sex;
173173 162 (IV) pregnancy, childbirth, or pregnancy-related conditions;
174174 163 (V) religion;
175175 164 (VI) national origin;
176176 165 (VII) age, if the individual is 40 years of age or older;
177177 166 (VIII) disability;
178178 167 (IX) sexual orientation; or
179179 168 (X) gender identity;
180180 169 (C) discriminate against a qualified person in the terms, conditions, or privileges of a
181181 170program described in Subsection (1)(f)(i)(A), because of:
182182 171 (I) race;
183183 172 (II) color;
184184 173 (III) sex;
185185 174 (IV) pregnancy, childbirth, or pregnancy-related conditions;
186186 175 (V) religion;
187187 176 (VI) national origin;
188188 177 (VII) age, if the individual is 40 years of age or older;
189189 178 (VIII) disability;
190190 179 (IX) sexual orientation; or
191191 180 (X) gender identity; or
192192 181 (D) except as provided in Subsection (1)(f)(ii), print, publish, or cause to be printed or
193193 182published, a notice or advertisement relating to employment by the employer, or membership in 02-09-23 11:39 AM H.B. 428
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195195 183or a classification or referral for employment by a labor organization, or relating to a
196196 184classification or referral for employment by an employment agency, indicating a preference,
197197 185limitation, specification, or discrimination based on:
198198 186 (I) race;
199199 187 (II) color;
200200 188 (III) sex;
201201 189 (IV) pregnancy, childbirth, or pregnancy-related conditions;
202202 190 (V) religion;
203203 191 (VI) national origin;
204204 192 (VII) age, if the individual is 40 years of age or older;
205205 193 (VIII) disability;
206206 194 (IX) sexual orientation; or
207207 195 (X) gender identity.
208208 196 (ii) Notwithstanding Subsection (1)(f)(i)(D), if the following is a bona fide
209209 197occupational qualification for employment, a notice or advertisement described in Subsection
210210 198(1)(f)(i)(D) may indicate a preference, limitation, specification, or discrimination based on:
211211 199 (A) race;
212212 200 (B) color;
213213 201 (C) religion;
214214 202 (D) sex;
215215 203 (E) pregnancy, childbirth, or pregnancy-related conditions;
216216 204 (F) age;
217217 205 (G) national origin;
218218 206 (H) disability;
219219 207 (I) sexual orientation; or
220220 208 (J) gender identity.
221221 209 (g) Subject to Subsection (7), an employer may not:
222222 210 (i) refuse to provide reasonable accommodations for an employee related to pregnancy,
223223 211childbirth, breastfeeding, or related conditions:
224224 212 (A) if the employee requests a reasonable accommodation; and
225225 213 (B) unless the employer demonstrates that the accommodation would create an undue H.B. 428 02-09-23 11:39 AM
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227227 214hardship on the operations of the employer;
228228 215 (ii) require an employee to terminate employment if another reasonable
229229 216accommodation can be provided for the employee's pregnancy, childbirth, breastfeeding, or
230230 217related conditions unless the employer demonstrates that the accommodation would create an
231231 218undue hardship on the operations of the employer; or
232232 219 (iii) deny employment opportunities to an employee, if the denial is based on the need
233233 220of the employer to make reasonable accommodations related to the pregnancy, childbirth,
234234 221breastfeeding, or related conditions of an employee unless the employer demonstrates that the
235235 222accommodation would create an undue hardship on the operations of the employer.
236236 223 (h) (i) It is unlawful to subject an individual, as a condition of employment,
237237 224membership, certification, licensing, credentialing, or passing an examination, to training,
238238 225instruction, or any other required activity that espouses, promotes, advances, or compels the
239239 226individual to believe or profess a belief in any of the following concepts and constitutes
240240 227discrimination based on race, color, sex, or national origin:
241241 228 (A) that members of one race, color, sex, or national origin are morally superior to
242242 229members of another race, color, sex, or national origin;
243243 230 (B) that an individual, by virtue of the individual's race, color, sex, or national origin, is
244244 231inherently racist, sexist, or oppressive, whether consciously or unconsciously;
245245 232 (C) that an individual's moral character or status as either privileged or oppressed is
246246 233necessarily determined by the individual's race, color, sex, or national origin;
247247 234 (D) that members of one race, color, sex, or national origin cannot or should not
248248 235attempt to treat others without respect to race, color, sex, or national origin;
249249 236 (E) that an individual, by virtue of the individual's race, color, sex, or national origin,
250250 237bears responsibility for, or should be subject to discrimination or adverse treatment because of
251251 238actions that other members of the same race, color, sex, or national origin committed in the
252252 239past;
253253 240 (F) that an individual, by virtue of the individual's race, color, sex, or national origin,
254254 241should be subject to discrimination or adverse treatment to achieve diversity, equity, or
255255 242inclusion;
256256 243 (G) that an individual should feel discomfort, guilt, anguish, or any other form of
257257 244psychological distress on account of the individual's race, color, sex, or national origin; or 02-09-23 11:39 AM H.B. 428
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259259 245 (H) that virtues including merit, excellence, hard work, fairness, neutrality, objectivity,
260260 246and racial colorblindness are racist or sexist, or the creation of members of a particular race,
261261 247color, sex, or national origin to oppress members of another race, color, sex, or national origin.
262262 248 (ii) Nothing in this Subsection (1)(h) prohibits an objective discussion of the concepts
263263 249described in Subsection (1)(h)(i) as part of a course of training or instruction that does not
264264 250include an endorsement of the concepts or a requirement of adherence to or belief in the
265265 251concepts.
266266 252 (iii) (A) The provisions of this Subsection (1)(h) are severable.
267267 253 (B) If a court holds invalid any provision of this Subsection (1)(h) or the application of
268268 254this Subsection (1)(h) to any individual or circumstance, the invalidity does not affect other
269269 255provisions or applications of this Subsection (1)(h) that can be given effect without the
270270 256invalidated provision or application.
271271 257 (2) Subsections (1)(a) through [(1)(g) may not be construed to] (1)(h) do not prevent:
272272 258 (a) the termination of employment of an individual who, with or without reasonable
273273 259accommodation, is physically, mentally, or emotionally unable to perform the duties required
274274 260by that individual's employment;
275275 261 (b) the variance of insurance premiums or coverage on account of age; or
276276 262 (c) a restriction on the activities of a person licensed in accordance with Title 32B,
277277 263Alcoholic Beverage Control Act, with respect to an individual who is under 21 years of age.
278278 264 (3) (a) It is not a discriminatory or prohibited employment practice:
279279 265 (i) for an employer to hire and employ an employee, for an employment agency to
280280 266classify or refer for employment an individual, for a labor organization to classify its
281281 267membership or to classify or refer for employment an individual, or for an employer, labor
282282 268organization, or joint labor-management committee controlling an apprenticeship or other
283283 269training or retraining program to admit or employ an individual in the program on the basis of
284284 270religion, sex, pregnancy, childbirth, or pregnancy-related conditions, age, national origin,
285285 271disability, sexual orientation, or gender identity in those certain instances when religion, sex,
286286 272pregnancy, childbirth, or pregnancy-related conditions, age, if the individual is 40 years of age
287287 273or older, national origin, disability, sexual orientation, or gender identity is a bona fide
288288 274occupational qualification reasonably necessary to the normal operation of that particular
289289 275business or enterprise; H.B. 428 02-09-23 11:39 AM
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291291 276 (ii) for a school, college, university, or other educational institution to hire and employ
292292 277an employee of a particular religion if:
293293 278 (A) the school, college, university, or other educational institution is, in whole or in
294294 279substantial part, owned, supported, controlled, or managed by a particular religious corporation,
295295 280association, or society; or
296296 281 (B) the curriculum of the school, college, university, or other educational institution is
297297 282directed toward the propagation of a particular religion;
298298 283 (iii) for an employer to give preference in employment to:
299299 284 (A) the employer's:
300300 285 (I) spouse;
301301 286 (II) child; or
302302 287 (III) son-in-law or daughter-in-law;
303303 288 (B) a person for whom the employer is or would be liable to furnish financial support if
304304 289the person were unemployed;
305305 290 (C) a person to whom the employer during the preceding six months furnishes more
306306 291than one-half of total financial support regardless of whether or not the employer was or is
307307 292legally obligated to furnish support; or
308308 293 (D) a person whose education or training is substantially financed by the employer for
309309 294a period of two years or more.
310310 295 (b) Nothing in this chapter applies to a business or enterprise on or near an Indian
311311 296reservation with respect to a publicly announced employment practice of the business or
312312 297enterprise under which preferential treatment is given to an individual because that individual
313313 298is a native American Indian living on or near an Indian reservation.
314314 299 (c) Nothing in this chapter may be interpreted to require an employer, employment
315315 300agency, labor organization, vocational school, joint labor-management committee, or
316316 301apprenticeship program subject to this chapter to grant preferential treatment to an individual or
317317 302to a group because of the race, color, religion, sex, age, national origin, disability, sexual
318318 303orientation, or gender identity of the individual or group on account of an imbalance that may
319319 304exist with respect to the total number or percentage of persons of a race, color, religion, sex,
320320 305age, national origin, disability, sexual orientation, or gender identity employed by an employer,
321321 306referred or classified for employment by an employment agency or labor organization, admitted 02-09-23 11:39 AM H.B. 428
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323323 307to membership or classified by a labor organization, or admitted to or employed in, any
324324 308apprenticeship or other training program, in comparison with the total number or percentage of
325325 309persons of that race, color, religion, sex, age, national origin, disability, sexual orientation, or
326326 310gender identity in any community or county or in the available work force in any community or
327327 311county.
328328 312 (4) It is not a discriminatory or prohibited practice with respect to age to observe the
329329 313terms of a bona fide seniority system or any bona fide employment benefit plan such as a
330330 314retirement, pension, or insurance plan that is not a subterfuge to evade the purposes of this
331331 315chapter, except that an employee benefit plan may not excuse the failure to hire an individual.
332332 316 (5) Notwithstanding Subsection (4), or another statute to the contrary, a person may not
333333 317be subject to involuntary termination or retirement from employment on the basis of age alone,
334334 318if the individual is 40 years of age or older, except:
335335 319 (a) under Subsection (6); and
336336 320 (b) when age is a bona fide occupational qualification.
337337 321 (6) Nothing in this section prohibits compulsory retirement of an employee who has
338338 322attained at least 65 years of age, and who, for the two-year period immediately before
339339 323retirement, is employed in a bona fide executive or a high policymaking position, if:
340340 324 (a) that employee is entitled to an immediate nonforfeitable annual retirement benefit
341341 325from the employee's employer's pension, profit-sharing, savings, or deferred compensation
342342 326plan, or any combination of those plans; and
343343 327 (b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000.
344344 328 (7) (a) For purposes of Subsection (1)(g), an employer may require an employee to
345345 329provide a certification from the employee's health care provider concerning the medical
346346 330advisability of a reasonable accommodation.
347347 331 (b) A certification under Subsection (7)(a) shall include:
348348 332 (i) the date the reasonable accommodation becomes medically advisable;
349349 333 (ii) the probable duration of the reasonable accommodation; and
350350 334 (iii) an explanatory statement as to the medical advisability of the reasonable
351351 335accommodation.
352352 336 (c) Notwithstanding Subsections (1)(g) and (7)(a), an employer may not require an
353353 337employee to obtain a certification from the employee's health care provider for more frequent H.B. 428 02-09-23 11:39 AM
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355355 338restroom, food, or water breaks.
356356 339 (d) An employer is not required under Subsection (1)(g) or this Subsection (7) to
357357 340permit an employee to have the employee's child at the workplace for purposes of
358358 341accommodating pregnancy, childbirth, breastfeeding, or related conditions.
359359 342 (e) An employer shall include in an employee handbook, or post in a conspicuous place
360360 343in the employer's place of business, written notice concerning an employee's rights to
361361 344reasonable accommodations for pregnancy, childbirth, breastfeeding, or related conditions.
362362 345 Section 2. Section 39A-1-201 is amended to read:
363363 346 39A-1-201. Adjutant general -- Appointment -- Term -- Qualifications.
364364 347 (1) There shall be one adjutant general of the National Guard appointed by the
365365 348governor.
366366 349 (2) The adjutant general is the commanding general of the Utah National Guard and the
367367 350Utah State Defense Force and holds office for a term of six years, unless terminated by
368368 351resignation, disability, age, in accordance with Subsection (6), or for cause.
369369 352 (3) The individual appointed to the office shall:
370370 353 (a) be a citizen of Utah and meet the requirements provided in Title 32, United States
371371 354Code;
372372 355 (b) be a federally recognized commissioned officer, with the rank of colonel or higher,
373373 356of the National Guard of the United States with no fewer than five years commissioned service
374374 357in the Utah National Guard; and
375375 358 (c) as determined by the governor, have sufficient knowledge and experience to
376376 359command the Utah National Guard.
377377 360 (4) Active service in the armed forces of the United States may be included in the
378378 361requirement in Subsection (3)(b), if the officer was a member of the Utah National Guard when
379379 362the officer entered that service.
380380 363 (5) The adjutant general shall establish a succession plan consistent with Section
381381 36453-2a-804 to ensure the continuity of command.
382382 365 (6) An officer is no longer eligible to hold the office of adjutant general after attaining
383383 366the age of 64 years.
384384 367 (7) The adjutant general shall ensure the readiness, training, discipline, and operations
385385 368of the National Guard. 02-09-23 11:39 AM H.B. 428
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387387 369 (8) (a) It is unlawful for the adjutant general or the Utah Department of Veterans and
388388 370Military Affairs to subject an individual or service member, as a condition of state active duty,
389389 371employment, membership, certification, licensing, credentialing, or passing an examination, to
390390 372training, instruction, or any other required activity that espouses, promotes, advances, or
391391 373compels the individual or service member to believe or profess a belief in any of the following
392392 374concepts and constitutes discrimination based on race, color, sex, or national origin:
393393 375 (i) that members of one race, color, sex, or national origin are morally superior to
394394 376members of another race, color, sex, or national origin;
395395 377 (ii) that an individual, by virtue of the individual's race, color, sex, or national origin, is
396396 378inherently racist, sexist, or oppressive, whether consciously or unconsciously;
397397 379 (iii) that an individual's moral character or status as either privileged or oppressed is
398398 380necessarily determined by the individual's race, color, sex, or national origin;
399399 381 (iv) that members of one race, color, sex, or national origin cannot or should not
400400 382attempt to treat others without respect to race, color, sex, or national origin;
401401 383 (v) that an individual, by virtue of the individual's race, color, sex, or national origin,
402402 384bears responsibility for, or should be subject to discrimination or adverse treatment because of
403403 385actions that other members of the same race, color, sex, or national origin committed in the
404404 386past;
405405 387 (vi) that an individual, by virtue of the individual's race, color, sex, or national origin,
406406 388should be subject to discrimination or adverse treatment to achieve diversity, equity, or
407407 389inclusion;
408408 390 (vii) that an individual should feel discomfort, guilt, anguish, or any other form of
409409 391psychological distress on account of the individual's race, color, sex, or national origin; or
410410 392 (viii) that virtues including merit, excellence, hard work, fairness, neutrality,
411411 393objectivity, and racial colorblindness are racist or sexist, or the creation of members of a
412412 394particular race, color, sex, or national origin to oppress members of another race, color, sex, or
413413 395national origin.
414414 396 (b) Nothing in this Subsection (8) prohibits an objective discussion of the concepts
415415 397described in Subsection (8)(a) as part of a course of training or instruction that does not include
416416 398an endorsement of the concepts or a requirement of adherence to or belief in the concepts.
417417 399 (c) (i) The provisions of this Subsection (8) are severable. H.B. 428 02-09-23 11:39 AM
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419419 400 (ii) If a court holds invalid any provision of this Subsection (8) or the application of
420420 401this Subsection (8) to any individual or circumstance, the invalidity does not affect other
421421 402provisions or applications of this Subsection (8) that can be given effect without the invalidated
422422 403provision or application.
423423 404 Section 3. Effective date.
424424 405 This bill takes effect on July 1, 2023.