H.B. 428
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: M. Curtis 6
6 02-09-23 11:39 AM 6
H.B. 428
1 LABOR AND MILITARY TRAINING REQUIREMENT
2 LIMITATION
3 2023 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Tim Jimenez
6 Senate Sponsor: ____________
7
8LONG TITLE
9General Description:
10 This bill prohibits, in certain employment and military contexts, certain training or
11other requirements that compel or require adherence to or belief in certain concepts.
12Highlighted Provisions:
13 This bill:
14 <prohibits, for purposes of employment discrimination and for the Utah National
15Guard and the Utah Department of Veterans and Military Affairs, training or other
16requirements that compel or require adherence to or belief in certain concepts;
17 <clarifies that the prohibition does not prohibit certain objective discussions;
18 <provides for severability; and
19 <makes technical and conforming changes.
20Money Appropriated in this Bill:
21 None
22Other Special Clauses:
23 This bill provides a special effective date.
24Utah Code Sections Affected:
25AMENDS:
26 34A-5-106, as last amended by Laws of Utah 2016, Chapter 330
27 39A-1-201, as renumbered and amended by Laws of Utah 2022, Chapter 373
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28
29Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 34A-5-106 is amended to read:
31 34A-5-106. Discriminatory or prohibited employment practices -- Permitted
32practices.
33 (1) It is a discriminatory or prohibited employment practice to take an action described
34in Subsections (1)(a) through [(g)] (h).
35 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate a
36person, or to retaliate against, harass, or discriminate in matters of compensation or in terms,
37privileges, and conditions of employment against a person otherwise qualified, because of:
38 (A) race;
39 (B) color;
40 (C) sex;
41 (D) pregnancy, childbirth, or pregnancy-related conditions;
42 (E) age, if the individual is 40 years of age or older;
43 (F) religion;
44 (G) national origin;
45 (H) disability;
46 (I) sexual orientation; or
47 (J) gender identity.
48 (ii) A person may not be considered "otherwise qualified," unless that person possesses
49the following required by an employer for any particular job, job classification, or position:
50 (A) education;
51 (B) training;
52 (C) ability, with or without reasonable accommodation;
53 (D) moral character;
54 (E) integrity;
55 (F) disposition to work;
56 (G) adherence to reasonable rules and regulations; and
57 (H) other job related qualifications required by an employer.
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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59the payment of differing wages or salaries to employees having substantially equal experience,
60responsibilities, and skill for the particular job.
61 (B) Notwithstanding Subsection (1)(a)(iii)(A):
62 (I) nothing in this chapter prevents an increase in pay as a result of longevity with the
63employer, if the salary increase is uniformly applied and available to all employees on a
64substantially proportional basis; and
65 (II) nothing in this section prohibits an employer and employee from agreeing to a rate
66of pay or work schedule designed to protect the employee from loss of Social Security payment
67or benefits if the employee is eligible for those payments.
68 (b) An employment agency may not:
69 (i) refuse to list and properly classify for employment, or refuse to refer an individual
70for employment, in a known available job for which the individual is otherwise qualified,
71because of:
72 (A) race;
73 (B) color;
74 (C) sex;
75 (D) pregnancy, childbirth, or pregnancy-related conditions;
76 (E) religion;
77 (F) national origin;
78 (G) age, if the individual is 40 years of age or older;
79 (H) disability;
80 (I) sexual orientation; or
81 (J) gender identity; or
82 (ii) comply with a request from an employer for referral of an applicant for
83employment if the request indicates either directly or indirectly that the employer discriminates
84in employment on account of:
85 (A) race;
86 (B) color;
87 (C) sex;
88 (D) pregnancy, childbirth, or pregnancy-related conditions;
89 (E) religion; H.B. 428 02-09-23 11:39 AM
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90 (F) national origin;
91 (G) age, if the individual is 40 years of age or older;
92 (H) disability;
93 (I) sexual orientation; or
94 (J) gender identity.
95 (c) (i) A labor organization may not for a reason listed in Subsection (1)(c)(ii):
96 (A) exclude an individual otherwise qualified from full membership rights in the labor
97organization;
98 (B) expel the individual from membership in the labor organization; or
99 (C) otherwise discriminate against or harass a member of the labor organization in full
100employment of work opportunity, or representation.
101 (ii) A labor organization may not take an action listed in this Subsection (1)(c) because
102of:
103 (A) race;
104 (B) sex;
105 (C) pregnancy, childbirth, or pregnancy-related conditions;
106 (D) religion;
107 (E) national origin;
108 (F) age, if the individual is 40 years of age or older;
109 (G) disability;
110 (H) sexual orientation; or
111 (I) gender identity.
112 (d) (i) Unless based upon a bona fide occupational qualification, or required by and
113given to an agency of government for a security reason, an employer, employment agency, or
114labor organization may not do the following if the statement, advertisement, publication, form,
115or inquiry violates Subsection (1)(d)(ii):
116 (A) print, circulate, or cause to be printed or circulated a statement, advertisement, or
117publication;
118 (B) use a form of application for employment or membership; or
119 (C) make any inquiry in connection with prospective employment or membership.
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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121inquiry that directly expresses a limitation, specification, or discrimination as to:
122 (A) race;
123 (B) color;
124 (C) religion;
125 (D) sex;
126 (E) pregnancy, childbirth, or pregnancy-related conditions;
127 (F) national origin;
128 (G) age, if the individual is 40 years of age or older;
129 (H) disability;
130 (I) sexual orientation; or
131 (J) gender identity.
132 (e) A person, whether or not an employer, an employment agency, a labor organization,
133or an employee or member of an employer, employment agency, or labor organization, may
134not:
135 (i) aid, incite, compel, or coerce the doing of an act defined in this section to be a
136discriminatory or prohibited employment practice;
137 (ii) obstruct or prevent a person from complying with this chapter, or any order issued
138under this chapter; or
139 (iii) attempt, either directly or indirectly, to commit an act prohibited in this section.
140 (f) (i) An employer, labor organization, joint apprenticeship committee, or vocational
141school providing, coordinating, or controlling an apprenticeship program or providing,
142coordinating, or controlling an on-the-job-training program, instruction, training, or retraining
143program may not:
144 (A) deny to, or withhold from, any qualified person the right to be admitted to or
145participate in an apprenticeship training program, on-the-job-training program, or other
146occupational instruction, training, or retraining program because of:
147 (I) race;
148 (II) color;
149 (III) sex;
150 (IV) pregnancy, childbirth, or pregnancy-related conditions;
151 (V) religion; H.B. 428 02-09-23 11:39 AM
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152 (VI) national origin;
153 (VII) age, if the individual is 40 years of age or older;
154 (VIII) disability;
155 (IX) sexual orientation; or
156 (X) gender identity;
157 (B) discriminate against or harass a qualified person in that person's pursuit of a
158program described in Subsection (1)(f)(i)(A) because of:
159 (I) race;
160 (II) color;
161 (III) sex;
162 (IV) pregnancy, childbirth, or pregnancy-related conditions;
163 (V) religion;
164 (VI) national origin;
165 (VII) age, if the individual is 40 years of age or older;
166 (VIII) disability;
167 (IX) sexual orientation; or
168 (X) gender identity;
169 (C) discriminate against a qualified person in the terms, conditions, or privileges of a
170program described in Subsection (1)(f)(i)(A), because of:
171 (I) race;
172 (II) color;
173 (III) sex;
174 (IV) pregnancy, childbirth, or pregnancy-related conditions;
175 (V) religion;
176 (VI) national origin;
177 (VII) age, if the individual is 40 years of age or older;
178 (VIII) disability;
179 (IX) sexual orientation; or
180 (X) gender identity; or
181 (D) except as provided in Subsection (1)(f)(ii), print, publish, or cause to be printed or
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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183or a classification or referral for employment by a labor organization, or relating to a
184classification or referral for employment by an employment agency, indicating a preference,
185limitation, specification, or discrimination based on:
186 (I) race;
187 (II) color;
188 (III) sex;
189 (IV) pregnancy, childbirth, or pregnancy-related conditions;
190 (V) religion;
191 (VI) national origin;
192 (VII) age, if the individual is 40 years of age or older;
193 (VIII) disability;
194 (IX) sexual orientation; or
195 (X) gender identity.
196 (ii) Notwithstanding Subsection (1)(f)(i)(D), if the following is a bona fide
197occupational qualification for employment, a notice or advertisement described in Subsection
198(1)(f)(i)(D) may indicate a preference, limitation, specification, or discrimination based on:
199 (A) race;
200 (B) color;
201 (C) religion;
202 (D) sex;
203 (E) pregnancy, childbirth, or pregnancy-related conditions;
204 (F) age;
205 (G) national origin;
206 (H) disability;
207 (I) sexual orientation; or
208 (J) gender identity.
209 (g) Subject to Subsection (7), an employer may not:
210 (i) refuse to provide reasonable accommodations for an employee related to pregnancy,
211childbirth, breastfeeding, or related conditions:
212 (A) if the employee requests a reasonable accommodation; and
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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214hardship on the operations of the employer;
215 (ii) require an employee to terminate employment if another reasonable
216accommodation can be provided for the employee's pregnancy, childbirth, breastfeeding, or
217related conditions unless the employer demonstrates that the accommodation would create an
218undue hardship on the operations of the employer; or
219 (iii) deny employment opportunities to an employee, if the denial is based on the need
220of the employer to make reasonable accommodations related to the pregnancy, childbirth,
221breastfeeding, or related conditions of an employee unless the employer demonstrates that the
222accommodation would create an undue hardship on the operations of the employer.
223 (h) (i) It is unlawful to subject an individual, as a condition of employment,
224membership, certification, licensing, credentialing, or passing an examination, to training,
225instruction, or any other required activity that espouses, promotes, advances, or compels the
226individual to believe or profess a belief in any of the following concepts and constitutes
227discrimination based on race, color, sex, or national origin:
228 (A) that members of one race, color, sex, or national origin are morally superior to
229members of another race, color, sex, or national origin;
230 (B) that an individual, by virtue of the individual's race, color, sex, or national origin, is
231inherently racist, sexist, or oppressive, whether consciously or unconsciously;
232 (C) that an individual's moral character or status as either privileged or oppressed is
233necessarily determined by the individual's race, color, sex, or national origin;
234 (D) that members of one race, color, sex, or national origin cannot or should not
235attempt to treat others without respect to race, color, sex, or national origin;
236 (E) that an individual, by virtue of the individual's race, color, sex, or national origin,
237bears responsibility for, or should be subject to discrimination or adverse treatment because of
238actions that other members of the same race, color, sex, or national origin committed in the
239past;
240 (F) that an individual, by virtue of the individual's race, color, sex, or national origin,
241should be subject to discrimination or adverse treatment to achieve diversity, equity, or
242inclusion;
243 (G) that an individual should feel discomfort, guilt, anguish, or any other form of
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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245 (H) that virtues including merit, excellence, hard work, fairness, neutrality, objectivity,
246and racial colorblindness are racist or sexist, or the creation of members of a particular race,
247color, sex, or national origin to oppress members of another race, color, sex, or national origin.
248 (ii) Nothing in this Subsection (1)(h) prohibits an objective discussion of the concepts
249described in Subsection (1)(h)(i) as part of a course of training or instruction that does not
250include an endorsement of the concepts or a requirement of adherence to or belief in the
251concepts.
252 (iii) (A) The provisions of this Subsection (1)(h) are severable.
253 (B) If a court holds invalid any provision of this Subsection (1)(h) or the application of
254this Subsection (1)(h) to any individual or circumstance, the invalidity does not affect other
255provisions or applications of this Subsection (1)(h) that can be given effect without the
256invalidated provision or application.
257 (2) Subsections (1)(a) through [(1)(g) may not be construed to] (1)(h) do not prevent:
258 (a) the termination of employment of an individual who, with or without reasonable
259accommodation, is physically, mentally, or emotionally unable to perform the duties required
260by that individual's employment;
261 (b) the variance of insurance premiums or coverage on account of age; or
262 (c) a restriction on the activities of a person licensed in accordance with Title 32B,
263Alcoholic Beverage Control Act, with respect to an individual who is under 21 years of age.
264 (3) (a) It is not a discriminatory or prohibited employment practice:
265 (i) for an employer to hire and employ an employee, for an employment agency to
266classify or refer for employment an individual, for a labor organization to classify its
267membership or to classify or refer for employment an individual, or for an employer, labor
268organization, or joint labor-management committee controlling an apprenticeship or other
269training or retraining program to admit or employ an individual in the program on the basis of
270religion, sex, pregnancy, childbirth, or pregnancy-related conditions, age, national origin,
271disability, sexual orientation, or gender identity in those certain instances when religion, sex,
272pregnancy, childbirth, or pregnancy-related conditions, age, if the individual is 40 years of age
273or older, national origin, disability, sexual orientation, or gender identity is a bona fide
274occupational qualification reasonably necessary to the normal operation of that particular
275business or enterprise; H.B. 428 02-09-23 11:39 AM
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276 (ii) for a school, college, university, or other educational institution to hire and employ
277an employee of a particular religion if:
278 (A) the school, college, university, or other educational institution is, in whole or in
279substantial part, owned, supported, controlled, or managed by a particular religious corporation,
280association, or society; or
281 (B) the curriculum of the school, college, university, or other educational institution is
282directed toward the propagation of a particular religion;
283 (iii) for an employer to give preference in employment to:
284 (A) the employer's:
285 (I) spouse;
286 (II) child; or
287 (III) son-in-law or daughter-in-law;
288 (B) a person for whom the employer is or would be liable to furnish financial support if
289the person were unemployed;
290 (C) a person to whom the employer during the preceding six months furnishes more
291than one-half of total financial support regardless of whether or not the employer was or is
292legally obligated to furnish support; or
293 (D) a person whose education or training is substantially financed by the employer for
294a period of two years or more.
295 (b) Nothing in this chapter applies to a business or enterprise on or near an Indian
296reservation with respect to a publicly announced employment practice of the business or
297enterprise under which preferential treatment is given to an individual because that individual
298is a native American Indian living on or near an Indian reservation.
299 (c) Nothing in this chapter may be interpreted to require an employer, employment
300agency, labor organization, vocational school, joint labor-management committee, or
301apprenticeship program subject to this chapter to grant preferential treatment to an individual or
302to a group because of the race, color, religion, sex, age, national origin, disability, sexual
303orientation, or gender identity of the individual or group on account of an imbalance that may
304exist with respect to the total number or percentage of persons of a race, color, religion, sex,
305age, national origin, disability, sexual orientation, or gender identity employed by an employer,
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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307to membership or classified by a labor organization, or admitted to or employed in, any
308apprenticeship or other training program, in comparison with the total number or percentage of
309persons of that race, color, religion, sex, age, national origin, disability, sexual orientation, or
310gender identity in any community or county or in the available work force in any community or
311county.
312 (4) It is not a discriminatory or prohibited practice with respect to age to observe the
313terms of a bona fide seniority system or any bona fide employment benefit plan such as a
314retirement, pension, or insurance plan that is not a subterfuge to evade the purposes of this
315chapter, except that an employee benefit plan may not excuse the failure to hire an individual.
316 (5) Notwithstanding Subsection (4), or another statute to the contrary, a person may not
317be subject to involuntary termination or retirement from employment on the basis of age alone,
318if the individual is 40 years of age or older, except:
319 (a) under Subsection (6); and
320 (b) when age is a bona fide occupational qualification.
321 (6) Nothing in this section prohibits compulsory retirement of an employee who has
322attained at least 65 years of age, and who, for the two-year period immediately before
323retirement, is employed in a bona fide executive or a high policymaking position, if:
324 (a) that employee is entitled to an immediate nonforfeitable annual retirement benefit
325from the employee's employer's pension, profit-sharing, savings, or deferred compensation
326plan, or any combination of those plans; and
327 (b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000.
328 (7) (a) For purposes of Subsection (1)(g), an employer may require an employee to
329provide a certification from the employee's health care provider concerning the medical
330advisability of a reasonable accommodation.
331 (b) A certification under Subsection (7)(a) shall include:
332 (i) the date the reasonable accommodation becomes medically advisable;
333 (ii) the probable duration of the reasonable accommodation; and
334 (iii) an explanatory statement as to the medical advisability of the reasonable
335accommodation.
336 (c) Notwithstanding Subsections (1)(g) and (7)(a), an employer may not require an
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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338restroom, food, or water breaks.
339 (d) An employer is not required under Subsection (1)(g) or this Subsection (7) to
340permit an employee to have the employee's child at the workplace for purposes of
341accommodating pregnancy, childbirth, breastfeeding, or related conditions.
342 (e) An employer shall include in an employee handbook, or post in a conspicuous place
343in the employer's place of business, written notice concerning an employee's rights to
344reasonable accommodations for pregnancy, childbirth, breastfeeding, or related conditions.
345 Section 2. Section 39A-1-201 is amended to read:
346 39A-1-201. Adjutant general -- Appointment -- Term -- Qualifications.
347 (1) There shall be one adjutant general of the National Guard appointed by the
348governor.
349 (2) The adjutant general is the commanding general of the Utah National Guard and the
350Utah State Defense Force and holds office for a term of six years, unless terminated by
351resignation, disability, age, in accordance with Subsection (6), or for cause.
352 (3) The individual appointed to the office shall:
353 (a) be a citizen of Utah and meet the requirements provided in Title 32, United States
354Code;
355 (b) be a federally recognized commissioned officer, with the rank of colonel or higher,
356of the National Guard of the United States with no fewer than five years commissioned service
357in the Utah National Guard; and
358 (c) as determined by the governor, have sufficient knowledge and experience to
359command the Utah National Guard.
360 (4) Active service in the armed forces of the United States may be included in the
361requirement in Subsection (3)(b), if the officer was a member of the Utah National Guard when
362the officer entered that service.
363 (5) The adjutant general shall establish a succession plan consistent with Section
36453-2a-804 to ensure the continuity of command.
365 (6) An officer is no longer eligible to hold the office of adjutant general after attaining
366the age of 64 years.
367 (7) The adjutant general shall ensure the readiness, training, discipline, and operations
368of the National Guard. 02-09-23 11:39 AM H.B. 428
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369 (8) (a) It is unlawful for the adjutant general or the Utah Department of Veterans and
370Military Affairs to subject an individual or service member, as a condition of state active duty,
371employment, membership, certification, licensing, credentialing, or passing an examination, to
372training, instruction, or any other required activity that espouses, promotes, advances, or
373compels the individual or service member to believe or profess a belief in any of the following
374concepts and constitutes discrimination based on race, color, sex, or national origin:
375 (i) that members of one race, color, sex, or national origin are morally superior to
376members of another race, color, sex, or national origin;
377 (ii) that an individual, by virtue of the individual's race, color, sex, or national origin, is
378inherently racist, sexist, or oppressive, whether consciously or unconsciously;
379 (iii) that an individual's moral character or status as either privileged or oppressed is
380necessarily determined by the individual's race, color, sex, or national origin;
381 (iv) that members of one race, color, sex, or national origin cannot or should not
382attempt to treat others without respect to race, color, sex, or national origin;
383 (v) that an individual, by virtue of the individual's race, color, sex, or national origin,
384bears responsibility for, or should be subject to discrimination or adverse treatment because of
385actions that other members of the same race, color, sex, or national origin committed in the
386past;
387 (vi) that an individual, by virtue of the individual's race, color, sex, or national origin,
388should be subject to discrimination or adverse treatment to achieve diversity, equity, or
389inclusion;
390 (vii) that an individual should feel discomfort, guilt, anguish, or any other form of
391psychological distress on account of the individual's race, color, sex, or national origin; or
392 (viii) that virtues including merit, excellence, hard work, fairness, neutrality,
393objectivity, and racial colorblindness are racist or sexist, or the creation of members of a
394particular race, color, sex, or national origin to oppress members of another race, color, sex, or
395national origin.
396 (b) Nothing in this Subsection (8) prohibits an objective discussion of the concepts
397described in Subsection (8)(a) as part of a course of training or instruction that does not include
398an endorsement of the concepts or a requirement of adherence to or belief in the concepts.
399 (c) (i) The provisions of this Subsection (8) are severable. H.B. 428 02-09-23 11:39 AM
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400 (ii) If a court holds invalid any provision of this Subsection (8) or the application of
401this Subsection (8) to any individual or circumstance, the invalidity does not affect other
402provisions or applications of this Subsection (8) that can be given effect without the invalidated
403provision or application.
404 Section 3. Effective date.
405 This bill takes effect on July 1, 2023.