No. 38744 (Change in Proposed Rule): Rule R606-1. Antidiscrimination

DAR File No.: 38744
Filed: 11/07/2014 10:27:47 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule change is to clarify language; give the Division discretion in the release of information to facilitate participation in the investigation; and to allow for an extension of time to file a response to a request for agency action.

Summary of the rule or change:

This rule change changes "Charge of Discrimination" to "Request for Agency Action". It also allows for an extension to respond to a request for agency action; gives the Division discretion as to when information will be released; and provides that personal contact information will not generally be released. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed amendment that was published in the September 1, 2014, issue of the Utah State Bulletin, on page 122. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the change in proposed rule and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

State statutory or constitutional authorization for this rule:

• Section 63G-4-102 et seq.
• Section 34A-5-101 et seq.

Anticipated cost or savings to:

the state budget:

The Division does not anticipate an immediate cost or savings but these rule changes may slightly reduce cost per investigation by allowing time for a more complete response from the parties. The Division does not anticipate a cost or savings to the state as an employer.

local governments:

The Division does not anticipate a cost or savings to local governments. While these changes may improve efficiency, the requirements remain the same.

small businesses:

The Division does not anticipate a cost or savings to small businesses. While these changes may improve efficiency, the requirements remain the same.

persons other than small businesses, businesses, or local governmental entities:

The Division does not anticipate a cost or savings to persons other than small businesses, businesses, or local government entities. While these changes may improve efficiency, the requirements remain the same.

Compliance costs for affected persons:

These rule changes do not change the requirements of the process so there should be no compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no anticipated fiscal impact on businesses. These rule changes may allow businesses the opportunity to better and more easily respond to claims of discrimination and may facilitate resolution prior to filing the response.

Sherrie Hayashi, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Labor Commission
Antidiscrimination and Labor, Antidiscrimination
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Kerry Chlarson at the above address, by phone at 801-530-6921, by FAX at 801-530-7601, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/20/2014

This rule may become effective on:

12/31/2014

Authorized by:

Sherrie Hayashi, Commissioner

RULE TEXT

R606. Labor Commission, Antidiscrimination and Labor, Antidiscrimination.

R606-1. Antidiscrimination.

R606-1-1. Authority.

This rule is established pursuant to Section 34A-5-104.

 

R606-1-2. Definitions.

The following definitions are complementary to the statutory definitions specified in Section 34A-5-102, and shall apply to all rules of R606.

A. "Act" means the Utah Antidiscrimination Act, prohibiting discriminatory or unlawful employment practices.

B. "Charging party" means the person who initiated agency action.

C. "Director" means the Director, Division of Antidiscrimination and Labor.

D. "Division" means the Division of Antidiscrimination and Labor.

E. "Disability" is defined in Section 34A-5-102 and is further defined as follows:

1. Being regarded as having a disability is equivalent to being disabled or having a disability.

2. Having a record of an impairment substantially limiting one or more major life activities is equivalent to being disabled or having a disability.

3. Major life activity means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and employment.

4. An individual will be considered substantially limited in the major life activity of employment or working if the individual is likely to experience difficulty in securing, retaining, or advancing in employment because of a disability.

5. Has a record of such an impairment means has a history of, or has been regarded as having, a mental or physical impairment that substantially limits one or more major life activity.

6. Is regarded as having an impairment means:

a. has a physical or mental impairment that does not substantially limit major life activities but is treated as constituting such a limitation;

b. has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such an impairment; or

c. has none of the impairments listed in the definition of physical or mental impairment above but is treated as having such an impairment.

F. "He, His, Him, or Himself" shall refer to either sex.

G. "Investigator" shall mean the individual designated by the Commission or Director to investigate complaints alleging discriminatory or prohibited employment practices.

H. "Qualified disabled individual" means a disabled individual who with reasonable accommodation can perform the essential functions of the job in question.

I. "Reasonable accommodation": For the purpose of enforcement of these rules and regulations the following criteria will be utilized to determine a reasonable accommodation.

1. An employer shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled applicant or employee unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its program

2. Reasonable accommodation may include:

a. making facilities used by the employees readily accessible to and useable by disabled individuals; and

b. job restructuring, modified work schedules, acquisition or modification of equipment or devices, and other similar actions.

3. In determining pursuant to Rule R606-1-2.J.1 whether an accommodation would impose an undue hardship on the operation of an employer, factors to be considered include:

a. the overall size of the employer's program with respect to number of employees, number and type of facilities, and size of budget;

b. the type of the employer's operation, including the composition and structure of the employer's work force; and

c. the nature and cost of the accommodation needed.

4. An employer may not deny an employment opportunity to a qualified disabled employee or applicant if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.

5. Each complaint will be handled on a case-by-case basis because of the variable nature of disability and potential accommodation.

J. "Sexual Harassment" means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.

2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.

3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.

 

R606-1-3. Procedures--Request for Agency Action and Investigation File.

A. CONTENTS OF REQUEST FOR AGENCY ACTION

A request for agency action as specified in Section 34A-5-107, shall be filed at the Division office on a form designated by the Division. The completed form shall include all information required by Section 63G-4-201(3).

B. FILING OF REQUESTS FOR AGENCY ACTION

1. A request for agency action must be filed within 180 days after the alleged discriminatory or prohibited employment practice occurred.

2. A request for agency action shall be filed either by personal delivery or regular mail addressed to the Division's office in Salt Lake City, Utah.

3. Investigators and any other persons designated by the Division, shall be available to assist in the drafting and filing of requests for agency action at the Division's office during normal business hours.

C. RESPONSE/ANSWER TO REQUEST FOR AGENCY ACTION

1. The Division shall mail a copy of the request for agency action to the charging party and the respondent/employer within ten working days of the filing of the request for agency action.

2. The respondent must answer the allegations of discrimination or prohibited employment practice set out in the request for agency action in writing within thirty(30) days from the date of the request for agency action was sent. The response/answer shall be mailed, emailed, or faxed to the Division office. Any correspondence sent by email must be sent to the email address specified by the Division.

3. The response must:

a. Specifically address each allegation raised in the [charge of discrimination]request for agency action, and

b. Be accompanied by any supporting evidence.

4. Failure to respond to a [charge of discrimination]request for agency action will result in an investigation and possible determination without input or evidence from the non-responsive party.

5. Responses submitted beyond the thirty (30) day time limit described in subsection (2) will not be considered, unless an extension has been granted. Extensions are granted at the sole discretion of the Division and should not be expected.

D. INVESTIGATION

Pursuant to Section 34A-5-104(2)(b) and Section 34A-5-107(3)(b), the Division may, with reasonable notice to the parties, conduct on-site visits, interviews, fact finding conferences, obtain records and other information and take such other action as is reasonably necessary to investigate the request for agency action. A party's unjustified failure to cooperate with the Division's reasonable investigative request may result in the Division concluding its investigation based on such other information as is available to the Division.

E. AMENDMENT OF REQUEST FOR AGENCY ACTION

1. All allegations of discrimination or prohibited employment practice set out in the request for agency action may be amended, either by the Division or the charging party prior to commencement of an evidentiary hearing and the respondent may amend its answer. Amendments made during or after an evidentiary hearing may be made only with the permission of the presiding officer. The Division shall permit liberal amendment of requests for agency action and filing of supplemental requests for agency action in order to accomplish the purpose of the Act.

2. Amendments or a supplemental request for agency action shall be in writing, or on forms furnished by the Division, signed and verified. Copies shall be filed in the same manner as in the case of original requests for agency action.

3. Amendments or a supplemental request for agency action shall be served on the respondent as in the case of an original request for agency action.

4. A request for agency action or a supplemental request for agency action may be withdrawn by the charging party prior to the issuance of a final order.

F. MAILING OF REQUEST FOR AGENCY ACTION

The mailing specified in Section 63G-4-201(3) shall be performed by the Division and the persons known to have a direct interest in the requested agency action as specified in Section 63G-4-201 (3)(b) shall be the charging party and the respondent/employer.

G. CLASSIFICATION OF PROCEEDING FOR PURPOSE OF UTAH ADMINISTRATIVE PROCEDURES ACT

Pursuant to Section 63G-4-202(1), the procedures specified in Section 34A-5-107(1) through (5) are an informal process and are governed by Section 63G-4-203. Any settlement conferences scheduled pursuant to Section 34A-5-107(3) are not adjudicative hearings.

H. PRESIDING OFFICER

For those procedures specified in Section 34A-5-107(1) through (5), the presiding officer shall be the Director or the Director's designee. The presiding officer for the formal hearing referred to in Section 34A-5-(6) through (11) shall be appointed by the Commission.

 

R606-1-4. Adjudication and Review Pursuant to Section 34A-5-107.

A. After a charge of discrimination has been investigated, the Director shall issue a Determination and Order. Alternatively, the Director may refer the charge to an investigator for further investigation.

B. A party dissatisfied with the Director's Determination and Order may request a de novo evidentiary hearing. The request must be in writing, state the party's reasons for seeking review, and must be received by the Division within 30 days of the date the Director signed the Determination and Order.

1. In computing the foregoing 30-day period, the day on which the Determination and Order are signed by the Director shall not be included. The last day of the 30-day period shall be included unless it is a weekend or legal holiday, in which event the 30-day period runs until the end of the next business day.

2. Unless a timely request for hearing is received by the Division, the Director's Determination and Order is the final Commission Order.

3. If a timely request for hearing is received, the Division will transmit the request to the Division of Adjudication within the Commission for assignment to an Administrative Law Judge. The ALJ will conduct a de novo formal hearing and issue an order in conformity with the requirements of the Utah Administrative Procedures Act.

C. A party may request review of the ALJ's order by complying with the provisions of Section 34A-1-303 and Section 63G-4-301 of the Utah Administrative Procedures Act.

 

R606-1-5. Release of Information Obtained Through the Investigative Process.

A. Pursuant to Utah Code Subsection 34A-5-107(14), the Division [will]may release information gained through its investigations or proceedings to a party to facilitate their participation in the investigation under the following circumstances:

1. The request is made in writing.

2. The Division has not received a request from the person or entity providing the information that such information be considered confidential.

3. The release of the information will not, in the determination of the Division impede the investigation; and

4. The Division has not determined the requested information should remain confidential or otherwise be protected.

B. If a person or entity requests in writing the information provided to the Commission be kept confidential, the Division will consider the reasons underlying the request and make a decision regarding the confidentiality of the information. This determination will govern the release of such information.

C. After the conclusion of the investigation, either party may request a copy of investigation file.

D. The Division generally will not release the following information:

1. work product;

2. [witness names]personal contact information of any individual;

3. Social Security information;

4. bank account numbers; and

5. medical records, including the ADA questionnaire, unless an appropriate release of medical information is obtained.

E. The Division may charge for the costs of providing copies to the parties.

 

R606-1-6. Designation as Formal Proceedings.

The adjudicative proceedings referred to in Subsections 34A-5-107(6)-(10) are classified as formal proceedings for purposes of the Utah Administrative Procedures Act.

 

R606-1-7. Declaratory Orders.

A. PURPOSE

As required by Section 63G-4-503, this rule provides the procedures for submission, review, and disposition of petitions for agency Declaratory Orders on the applicability of statutes, rules, and Orders governing or issued by the agency.

B. PETITION FORM AND FILING

1. The petition shall be addressed and delivered to the Director, who shall mark the petition with the date of receipt.

2. The petition shall:

(a) be clearly designated as a request for an agency Declaratory Order;

(b) identify the statute, rule, or Order to be reviewed;

(c) describe in detail the situation or circumstances in which applicability is to be reviewed;

(d) describe the reason or need for the applicability review, addressing in particular why the review should not be considered frivolous;

(e) include an address and telephone where the petitioner can be contacted during regular work days;

(f) declare whether the petitioner has participated in a completed or on-going adjudicative proceeding concerning the same issue within the past 12 months; and

(g) be signed by the petitioner.

C. REVIEWABILITY

The agency shall not review a petition for a Declaratory Order that is:

1. not within the jurisdiction and competence of the agency;

2. trivial, irrelevant, or immaterial; or

3. otherwise excluded by state or federal law.

D. PETITION REVIEW AND DISPOSITION

1. The Director shall promptly review and consider the petition and may:

(a) meet with the petitioner;

(b) consult with Legal Counsel; or

(c) take any action consistent with law that the agency deems necessary to provide the petition adequate review and due consideration.

2. The Director may issue an order pursuant to Section 63G-4-503(6).

E. ADMINISTRATIVE REVIEW

Review of a Declaratory Order is per Section 63G-4-302 only.

 

R606-1-8. Time.

A. An Order is deemed issued on the date on the face of the Order which is the date the presiding officer signs the Order.

B. In computing any period of time prescribed or allowed by these rules or by applicable statute:

1. The day of the act, event, finding, or default, or the date an Order is issued, shall not be included;

2. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a state legal holiday, in which event the period runs until the end of the next working day;

3. When the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and state legal holidays shall be excluded in the computation;

4. No additional time for mailing will be allowed.

 

KEY: discrimination, employment, time

Date of Enactment or Last Substantive Amendment: [2014]2015

Notice of Continuation: August 30, 2011

Authorizing, and Implemented or Interpreted Law: 34A-5-101 et seq.; 63G-4-102 et seq.