Fair Employment Practices Law Summaries
Utah, Fair Employment Practices Law Summaries
The Utah Antidiscrimination Act generally prohibits employment discrimination in the state. The law is codified in Title 34A, Ch. 5 of the Utah Code Annotated. The full text of the law is available beginning at Employment Practices Guide ¶46-20,025.01 .
DEFINITIONS
“Employee” means any person applying with or employed by an employer (Sec. 34A-5-102(7), as amended by S. 93, L. 1999, effective May 3, 1999).
“Employer” means the state; any political subdivision; a board, commission, department, institution, school district, trust, or agent of the state or its political subdivisions; or a person employing 15 or more employees within Utah for each working day in each of 20 calendar weeks or more in the current or preceding calendar year (Sec. 34A-5-102(8), as amended by S. 93, L. 1999, effective May 3, 1999).
“Employer” does not include a religious organization or association, a religious corporation sole, or any corporation or association that is a wholly owned subsidiary or agency of the above (Sec. 34A-5-102(8), as amended by S. 93, L. 1999, effective May 3, 1999).
“Disability” means a physical or mental impairment that substantially limits one or more of an individual's major life activities (Sec. 34A-5-102(5), as amended by S. 93, L. 1999, effective May 3, 1999).
COVERAGE
Employers covered under Utah's Antidiscrimination Act include the state; any political subdivision; a board, commission, department, institution, school district, trust, or agent of the state or its political subdivisions; or a person employing 15 or more employees within Utah for each working day in each of 20 calendar weeks or more in the current or preceding calendar year (Sec. 34A-5-102(8), as amended by S. 93, L. 1999, effective May 3, 1999).
Not covered are religious organizations or associations, religious corporations sole, and any corporation or association constituting a wholly owned subsidiary or agency of the above (Sec. 34A-5-102(8), as amended by S. 93, L. 1999, effective May 3, 1999).
EXCEPTIONS
Preferential treatment.- Giving preferential treatment with respect to employment to the employer's spouse, child or son-in-law or daughter-in-law, or to any person for whom the employer is or would be liable to furnish financial support if those persons were unemployed is not unlawful (Sec. 34A-5-106(3)(a)(iii), as amended by S. 93, L. 1999, effective May 3, 1999).
Giving preference in employment to an individual whose education or training was substantially financed by the employer for a period of two years or more is not unlawful (Sec. 34A-5-106(3)(a)(iii), as amended by S. 93, L. 1999, effective May 3, 1999).
The Utah Antidiscrimination Act does not apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of the business or enterprise under which preferential treatment is given to any individual because the individual is a native American Indian living on or near an Indian reservation (Sec. 34A-5-106(3)(b), as amended by S. 93, L. 1999, effective May 3, 1999).
Quotas.- Preferences need not be given to any person or group to rectify an imbalance that may exist with respect to the number or percentage of persons employed in protected classes (Sec. 34A-5-106(3)(c), as amended by S. 93, L. 1999, effective May 3, 1999).
Bona fide occupational qualifications.- Employers may make employment decisions based on a person's protected status under a bona fide occupational qualification that is reasonably necessary to normal business operation (Sec. 34A-5-106(3)(a)(i), as amended by S. 93, L. 1999, effective May 3, 1999). Bona fide occupational qualifications are employee characteristics that are necessary to the operation or the essence of the employer's business (Sec. 34A-5-102(2), as amended by S. 93, L. 1999, effective May 3, 1999).
Bona fide seniority or benefit plan.- With respect to age, observing the terms of a bona fide seniority system or employment benefit plan, such as a retirement, pension, or insurance plan, is not unlawful, if the plan is not used as a subterfuge to evade the purposes of the Utah Antidiscrimination Act. No such employee benefit plan, however, will excuse the failure to hire an individual (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
Compulsory retirement for executive or high policy making positions.- Compulsory retirement of an employee who has attained at least 65 years of age, and who, for the two-year period immediately preceding retirement, is employed in a bona fide executive or a high policy making position is not unlawful, if the employee is entitled to an immediate nonforfeitable annual retirement benefit from the employer's pension, profit-sharing, savings, or deferred compensation plan, or any combination of plans, that equals, in the aggregate, at least $44,000 (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
Religious organizations.- It is not a discriminatory or prohibited employment practice for a school, college, university, or other educational institution to hire and employ employees of a particular religion if the institution is owned, supported, controlled, or managed by a particular religious corporation, association, or society, or if the curriculum of the institution is designed to advance a particular religion (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
Pay.- Increasing pay as a result of longevity with the employer is not unlawful, if the salary increases are uniformly applied and available to all employees on a substantially proportional basis (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
Social security.- Agreeing to rate of pay or work schedule designed to protect an eligible employee from loss of Social Security payment or benefits is not unlawful (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
WHAT THE EMPLOYER MUST DO
It is a discriminatory or prohibited employment practice for an employer to refuse to hire, promote, discharge, demote, or terminate any person, or to retaliate against, harass, or discriminate with respect to compensation or terms, privileges, and conditions of employment, against any person otherwise qualified, because of race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, age (40 and over), religion, national origin, or disability (Sec. 34A-5-106(1)(a), as amended by S. 93, L. 1999, effective May 3, 1999).
Apprenticeship programs.- It is a discriminatory or prohibited employment practice for an employer providing, coordinating, or controlling apprenticeship programs, on-the-job-training programs, or retraining programs (Sec. 34A-5-106, as amended by S. 166, L. 1997, effective July 1, 1997):
to deny to, or withhold from, any qualified person, because of race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, religion, national origin, age (40 and over), or disability, the right to be admitted to, or participate in any such program;
to discriminate against or harass any qualified person in that person's pursuit of such programs, or to discriminate against such a person in the terms, conditions, or privileges of such programs, because of any of the factors enumerated in (1) above;
to print, publish, or cause to be printed or published, any notice or advertisement relating to employment by the employer, indicating any preference, limitation, specification, or discrimination based on any of the factors enumerated in (1) above. A notice or ad may, however, indicate a preference, limitation, specification, or discrimination based on any of the factors enumerated in (1) above when such factor is a bona fide occupational qualification for employment.
Advertisements.- Unless based upon a bona fide occupational qualification, or required by, and given to, an agency of government for security reasons, an employer may not print, or circulate, or cause to be printed or circulated, any statement, advertisement, or publication, that expresses any limitation, specification, or discrimination as to race, color, religion, sex, pregnancy, childbirth, or pregnancy-related conditions, national origin, age (40 and over), or disability. Intent to make any such limitation, specification, or discrimination is also considered discrimination (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
Retaliation.- Employers may not discharge or discriminate against any employee who participated in a civil rights proceeding or who asserted rights under the Utah Antidiscrimination Act (Sec. 34A-6-203(1), as amended by S. 166, L. 1997, effective July 1, 1997).
See also “Public employers, Harassment,” below.
Public employers.- The state and its officers and employees are governed by Sec. 34A-5-106 of the Utah Antidiscrimination Act concerning discriminatory or unfair employment practices (Sec. 67-19-4, as amended by S. 166, L. 1997, effective July 1, 1997).
All state personnel actions must provide equal employment opportunity for all individuals (Utah Administrative Code, R477-2-3, as amended effective July 3, 2001).
Employment actions must not be based on race, religion, national origin, color, sex, age, disability, protected activity under the antidiscrimination laws, political affiliation, military status or affiliation or any other non-job-related factor, nor may any person be subjected to unlawful harassment by a state employee (Utah Administrative Code, R477-2-3, as amended effective July 3, 2001).
Harassment.- It is the State of Utah's policy to (Utah Administrative Code, R477-15-1, as amended effective July 3, 2001):
provide all employees a working environment that is free from unlawful harassment based on race, religion, national origin, color, sex, age, disability, or protected activity under the antidiscrimination law; and
comply with state and federal laws regarding discrimination based on unlawful harassment.
Unlawful harassment means discriminatory treatment based on race, religion, national origin, color, sex, age, protected activity or disability. Discrimination based on unlawful harassment will not be tolerated. Violators will be subject to corrective action or disciplined and may be referred for criminal prosecution. Discipline may include termination of employment (Utah Administrative Code, R477-15-2(1), as amended effective July 3, 2001).
Unlawful harassment includes the following subtypes (Utah Administrative Code, R477-15-2(2), as amended effective July 3, 2001):
behavior or conduct in violation of R477-15-2(1) above that is unwelcome, pervasive, demeaning, ridiculing, derisive, or coercive, and results in a hostile, offensive, or intimidating work environment.
behavior or conduct in violation of R477-15-2(1) above that results in a tangible employment action being taken against the harassed employee.
An employee will be subject to corrective action or discipline for unlawful harassment towards another employee even if that harassment occurs outside of scheduled work time or work location provided that the harassment meets the requirements of R477-15-2(2) above (Utah Administrative Code, R477-15-2(4), as amended effective July 3, 2001).
No person may retaliate against any employee who opposes a practice forbidden under this policy, or has filed a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this policy or is otherwise engaged in protected activity (Utah Administrative Code, R477-15-3, as amended effective July 3, 2001).
Executive Order 2006-0012.- Utah Governor Jon M. Huntsman, Jr., issued an executive order prohibiting unlawful harassment (discriminatory treatment based on race, religion, national origin, color, sex, age, protected activity or disability) in any and every workplace in which state employees and employees of public and higher education are required to conduct business.
Pursuant to the order, the Department of Human Resource Management is to issue rules and policies to ensure continued implementation of this order for employees of state government to include a provision that unlawful harassment awareness training and education be mandatory for all employees in state government; and vigorously pursue the implementation of appropriate rules and policies to include imposition of disciplinary actions. Education authorities are enjoined to do the same for their organizations.
The Director of the Department of Human Resource Management is to provide state agencies with an appropriate education program for all employees; provide guidelines on agency policy statements and complaint procedures; and provide technical assistance to state and educational authorities when requested.
The director of each state department or agency, board of education or institution of higher education is to inform all employees of this order forbidding unlawful harassment in their respective departments; inform employees of their rights; assure access to a complaint system for individuals within their departments consistent with rules issued by the Department of Human Resource Management and the Equal Employment Opportunity Commission guidelines; provide structured training to all managers regarding their responsibility in identifying unlawful harassment and appropriately dealing with complaints and solving related problems; and provide training programs for employees (Executive Order 2006-0012, signed December 13, 2006).
Termination-Refusal to sell alcoholic beverages.- A sanction or termination of employment may not be imposed upon any employee of any restaurant, airport lounge, private club, on-premise beer retailer or any other establishment serving alcoholic beverages as a result of the employee having exercised his or her independent judgment to refuse to sell alcoholic beverages to any person the employee considers to be under 21 or under the influence of alcohol or drugs. An employer who terminates an employee or imposes sanctions on an employee for this reason is considered to have discriminated against the employee under the Utah Antidiscrimination Act (Sec. 32A-14-101(8), as amended by S. 166, L. 1997, effective July 1, 1997).
Employment applications.- Unless based upon a bona fide occupational qualification, or required by, and given to, an agency of government for security reasons, an employer may not use any form of application for employment that expresses any limitation, specification, or discrimination as to race, color, religion, sex, pregnancy, childbirth, or pregnancy-related conditions, national origin, age (40 and over), or disability. Intent to make any such limitation, specification, or discrimination is also considered discrimination (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
Preemployment inquiries.- Unless based upon a bona fide occupational qualification, or required by, and given to, an agency of government for security reasons, an employer may not make any inquiry in connection with prospective employment that expresses any limitation, specification, or discrimination as to race, color, religion, sex, pregnancy, childbirth, or pregnancy-related conditions, national origin, age (40 and over), or disability. Intent to make any such limitation, specification, or discrimination is also considered discrimination (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
Protection of Activities in Private Vehicles law .-Except as provided below, a person (including any employer) may not establish or enforce a policy or rule that has the effect of prohibiting any individual from possessing any item in or on a motor vehicle on any property designated for motor vehicle parking, if the effect of the policy or rule constitutes a substantial burden on that individual's free exercise of religion (Sec. 34-45-103(1)(b), as added by S. 78, L. 2009, effective May 12, 2009).
DEADLINES
Anyone aggrieved by an alleged unlawful employment practice may file a charge with the Labor Commission, Division of Antidiscrimination and Labor, within 180 days after the occurrence of the alleged violation. Charges also may be filed by a person's attorney or agent (Sec. 34A-5-107(1)(a) and (c), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).
RECORDKEEPING
Private and public employers must preserve employment records (including application forms and records pertaining to hiring, promotion, demotion, transfer, termination, compensation and selection for apprenticeship/training) for 6 months from the date of the making of the record or personnel action involved, whichever is later. Employers must keep records for 6 months after involuntary terminations. Where a complaint of discrimination has been filed, employers must preserve relevant records until final disposition of the complaint (Utah AdminCode, R606-6-2). In addition, astate agency's HR or DHRM office or an authorized official must maintain a separate protected record of all unlawful harassment complaints. Records must be kept for at least 3 years from the resolution of the complaint or investigative proceeding. Supervisors may not keep separate files related to unlawful harassment complaints (Utah AdminCode, R477-15-6, as continued effective June 9, 2007).
ENFORCEMENT
Filing claim.- Any person claiming to be aggrieved by a discriminatory or prohibited employment practice may make, sign, and file with the Labor Commission, Division of Antidiscrimination and Labor, a request for agency action. The person may do this on his or her own behalf, or through an attorney or agent (Sec. 34A-5-107(1)(a), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).
A request for agency action must be filed within 180 days after the alleged violation occurred (Sec. 34A-5-107(1)(c), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).
Noncompliant employees.- An employer who has employees who refuse or threaten to refuse to comply with the Utah Antidiscrimination Act may file with the division a request for agency action asking the division for assistance to obtain their compliance by conciliation or other remedial action (Sec. 34A-5-107(2), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 20089).
Settlement attempts.- Before a hearing is set or held as part of an adjudicative proceeding, the division will assign an investigator to attempt a settlement between the parties by conference, conciliation, or persuasion. If no settlement is reached, the investigator will make an impartial investigation of all allegations (Sec. 34A-5-107(3), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).
If the initial attempts at settlement are unsuccessful, and the investigator uncovers insufficient evidence during the investigation to support the allegations of a violation, the investigator will formally report these findings to the director of the division or the director's designee. The director or designee may then issue a determination and order for dismissal. A party may make a written request to the Division of Adjudication for an evidentiary hearing to review the director's or designee's determination and order within 30 days of the date of the determination and order. If the director or designee receives no timely request for a hearing, the determination and order become final (Sec. 34A-5-107(4), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).
If the initial attempts at settlement are unsuccessful and the investigator uncovers sufficient evidence to support the allegations of discrimination, the investigator will formally report these findings to the director or the director's designee. The director or designee may then issue a determination and order based on the report. A party may file a written request to the Division of Adjudication for an evidentiary hearing to review the director's or designee's determination and order within 30 days of the date the determination and order is issued. If the director or designee receives no timely request for a hearing, the determination and order requiring the respondent to cease any discriminatory employment practice and to provide relief to the aggrieved party becomes final (Sec. 34A-5-107(5), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).
Hearing.- If, upon all the evidence at the hearing, the presiding officer finds that a respondent has engaged in employment discrimination or retaliation, the presiding officer will issue an order requiring the respondent to cease the discrimination and provide relief to the complaining party, including reinstatement, back pay and benefits, and attorneys' fees and costs (Sec. 34A-5-107(9), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008, and Sec. 34A-6-203, as amended by S. 166, L. 1997, effective July 1, 1997).
Review.- Either party may file a written request for review of the order issued by the presiding officer. If there is no timely request for review, the order becomes final (Sec. 34A-5-107(11), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008). An order of the commission is subject to judicial review (Sec. 34A-5-107(12), as amended by S. 93, L. 1999, effective May 3, 1999).
Exclusive remedy.- The procedures described above are the exclusive remedy under state law for employment discrimination based upon race, color, sex, retaliation, pregnancy, childbirth or pregnancy-related conditions, age, religion, national origin, or disability (Sec. 34A-5-107(15), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).
Action under federal law.- The commencement of an action under federal law for relief based upon any act prohibited by the Utah Antidiscrimination Act bars the commencement or continuation of any adjudicative proceeding before the Labor Commission in connection with the same claims (Sec. 34A-5-107(16), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).
WHO TO CONTACT
Contact the Labor Commission, Division of Antidiscrimination and Labor, at 160 E. 300 South, 3rd Floor, P.O. Box 146630, Salt Lake City, UT 84114. Telephone: (801) 530-6801. Fax: (801) 530-7609.
<p>Contact the Labor Commission, Division of Antidiscrimination and Labor, at 160 E. 300 South, 3rd Floor, P.O. Box 146630, Salt Lake City, UT 84114.</p>