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H0201................................by JUDICIARY, RULES AND ADMINISTRATION
PERSONS WITH DISABILITIES - Amends existing law relating to prohibitions
against discriminatory practices to include prohibitions against
discrimination against persons with disabilities; to define additional
terms; to provide for diverse representation among members of the Human
Rights Commission; to provide additional limitations on the application of
this act; and to prohibit reprisals for taking actions pursuant to this
act.
02/14 House intro - 1st rdg - to printing
02/15 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 201
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO PROHIBITIONS AGAINST DISCRIMINATORY PRACTICES; AMENDING SECTION
3 67-5901, IDAHO CODE, TO INCLUDE WITHIN PURPOSES OF THE CHAPTER PROHIBI-
4 TIONS AGAINST DISCRIMINATION AGAINST PERSONS WITH DISABILITIES; AMENDING
5 SECTION 67-5902, IDAHO CODE, TO DEFINE ADDITIONAL TERMS AND TO MAKE TECH-
6 NICAL CORRECTIONS; AMENDING SECTION 67-5903, IDAHO CODE, TO STRIKE OBSO-
7 LETE PROVISIONS, TO PROVIDE FOR DIVERSE REPRESENTATION AMONG MEMBERS OF
8 THE COMMISSION; AMENDING SECTION 67-5909, IDAHO CODE, TO INCLUDE DISCRIMI-
9 NATION AGAINST A PERSON WITH A DISABILITY IN ACTS PROHIBITED AND TO MAKE
10 TECHNICAL CORRECTIONS; AMENDING SECTION 67-5910, IDAHO CODE, TO PROVIDE
11 ADDITIONAL LIMITATIONS ON THE APPLICATION OF THIS CHAPTER AND TO MAKE
12 TECHNICAL CORRECTIONS; AND AMENDING SECTION 67-5911, IDAHO CODE, TO PRO-
13 HIBIT REPRISALS FOR TAKING ACTIONS PURSUANT TO THIS CHAPTER AND TO MAKE
14 TECHNICAL CORRECTIONS.
15 Be It Enacted by the Legislature of the State of Idaho:
16 SECTION 1. That Section 67-5901, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 67-5901. PURPOSE OF ACT CHAPTER. The general purposes of this act chapter
19 are:
20 (1) To provide for execution within the state of the policies embodied in
21 the federal Civil Rights Act of 1964, as amended, and the Age Discrimination
22 in Employment Act of 1967, as amended, and Titles I and III of the Americans
23 with Disabilities Act.
24 (2) To secure for all individuals within the state freedom from discrimi-
25 nation because of race, color, religion, sex or gender, national origin or
26 disability in connection with employment, public accommodations, education and
27 real property transactions, discrimination because of race, color, religion,
28 gender or national origin in connection with education, discrimination because
29 of age or disability in connection with employment, and discrimination because
30 of disability in real property transactions, and thereby to protect their
31 interest in personal dignity, to make available to the state their full pro-
32 ductive capacities, to secure the state against domestic strife and unrest, to
33 preserve the public safety, health, and general welfare, and to promote the
34 interests, rights and privileges of individuals within the state.
35 SECTION 2. That Section 67-5902, Idaho Code, be, and the same is hereby
36 amended to read as follows:
37 67-5902. DEFINITIONS. In this act chapter, unless the context otherwise
38 requires:
39 (1) "Commission" means the commission on human rights created by this act
40 chapter;
41 (2) "Commissioner" means a member of the commission;
2
1 (3) "Discriminatory practice" means a practice designated as discrimina-
2 tory under the terms of this act chapter;
3 (4) "National origin" includes the national origin of an ancestor;
4 (5) "Person" includes an individual, association, corporation, joint
5 apprenticeship committee, joint-stock company, labor union, legal representa-
6 tive, mutual company, partnership, any other legal or commercial entity, the
7 state, or any governmental entity or agency;
8 (6) "Employer" means a person, wherever situated, who hires five (5) or
9 more employees for each working day in each of twenty (20) or more calendar
10 weeks in the current or preceding calendar year whose services are to be par-
11 tially or wholly performed in the state of Idaho, except for domestic servants
12 hired to work in and about the person's household. The term also means:
13 (a) aA person who as contractor or subcontractor is furnishing material
14 or performing work for the state;
15 (b) aAny agency of or any governmental entity within the state; and
16 (c) aAny agent of such employer.
17 (7) "Employment agency" means a person regularly undertaking with or
18 without compensation to procure employees for an employer or to procure for
19 employees opportunities to work for an employer and includes an agent of such
20 a person;
21 (8) "Labor organization" includes:
22 (a) aAn organization of any kind, an agency or employee representation
23 committee, group, association, or plan in which employees participate and
24 which exists for the purpose, in whole or in part, of dealing with employ-
25 ers concerning grievance, labor disputes, wages, rates of pay, hours, or
26 other terms or conditions of employment;
27 (b) aA conference, general committee, joint or system board, or joint
28 council which is subordinate to a national or international labor organi-
29 zation; or
30 (c) aAn agent of a labor organization.
31 (9) "Place of public accommodation" means a business, accommodation,
32 refreshment, entertainment, recreation, or transportation facility of any
33 kind, whether licensed or not, whose goods, services, facilities, privileges,
34 advantages or accommodations are extended, offered, sold, or otherwise made
35 available to the public;
36 (10) "Educational institution" means a public or private institution and
37 includes an academy, college, elementary or secondary school, extension
38 course, kindergarten, nursery, school system, or university and a business,
39 nursing, professional, secretarial, technical, or vocational school and
40 includes an agent of an educational institution;
41 (11) "Real property" includes buildings, structures, real estate, lands,
42 tenements, leaseholds, interests in real estate cooperatives, condominiums,
43 and hereditaments, corporeal and incorporeal or any interest therein;
44 (12) "Real estate transaction" includes the sale, exchange, rental or
45 lease of real property;
46 (13) "Housing accommodation" includes any improved or unimproved real
47 property, or part thereof, which is used or occupied, or as the home or resi-
48 dence of one (1) or more individuals;
49 (14) "Real estate broker or salesman" means a person, whether licensed or
50 not, who, for or with the expectation of receiving a consideration, lists,
51 sells, purchases, exchanges, rents, or leases real property, or who negotiates
52 or attempts to negotiate any of these activities, or who holds himself out as
53 engaged in these activities, or who negotiates or attempts to negotiate a loan
54 secured or to be secured by mortgage or other encumbrance upon real property,
55 or who is engaged in the business of listing real property in a publication;
3
1 or a person employed by or acting on behalf of any of these;
2 (15) "Disability" means a physical or mental condition of a person,
3 whether congenital or acquired, which constitutes a substantial limitation to
4 that person and is demonstrable by medically accepted clinical or laboratory
5 diagnostic techniques. A person with a disability is one who (a) has such a
6 disability, or (b) has a record of such a disability, or (c) is regarded as
7 having such a disability;
8 (16) "Reasonable accommodation" means an adjustment which does not (a)
9 unduly disrupt or interfere with the employer's normal operations, (b)
10 threaten the health or safety of the person with the disability or others, (c)
11 contradict a business necessity of the employer, or (d) impose undue hardship
12 on the employer based on the size of the employer's business, the type of
13 business, the financial resources, and the estimated cost and extent of the
14 adjustment;
15 (17) "Readily achievable" means easily accomplishable and able to be car-
16 ried out without much difficulty or expense. In determining whether an action
17 is readily achievable, factors to be considered include (a) the nature and
18 cost of the action needed under this chapter, (b) the overall financial
19 resources of the facility or facilities involved in the action, the number of
20 persons employed at the facility, the effect on expenses and resources, or the
21 impact otherwise of the action upon the operation of the facility, (c) the
22 overall financial resources of the covered entity, the overall size of the
23 business of a covered entity with respect to the number of its employees, the
24 number, type, and location of its facilities, and (d) the type of operation
25 or operations of the covered entity, including the composition, structure, and
26 functions of the workforce of the entity, the geographic separateness, admin-
27 istrative or fiscal relationship of the facility or facilities in question to
28 the covered entity.
29 SECTION 3. That Section 67-5903, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 67-5903. CREATION OF COMMISSION ON HUMAN RIGHTS -- MEMBERS -- APPOINT-
32 MENT. There is hereby created in the office of the governor the Idaho commis-
33 sion on human rights to consist of nine (9) members, all of whom shall be
34 appointed by the governor, with the advice and consent of the senate, each for
35 a term of three (3) years. In making the first appointments, the governor
36 shall specify the term of each member, so that the terms of three (3) members
37 expire each year. The terms of office of members of the commission holding
38 office prior to July 1, 1974, shall terminate on July 1, 1974, and within
39 thirty (30) days thereafter the governor shall appoint the members of the com-
40 mission who shall serve staggered terms as provided by this section.
41 On and after July 1, 1976, the governor shall appoint members of the com-
42 mission as terms of existing members expire so that tThe commission shall be
43 comprised as follows: one (1) member shall be representative of industry; one
44 (1) member shall be representative of labor; and seven (7) members shall be
45 appointed at large. Members shall be appointed to obtain, to the extent possi-
46 ble, broad representation of the diversity of individuals who comprise the
47 population of the state of Idaho.
48 SECTION 4. That Section 67-5909, Idaho Code, be, and the same is hereby
49 amended to read as follows:
50 67-5909. ACTS PROHIBITED. It shall be a prohibited act to discriminate
51 against a person because of, or on a basis of, race, color, religion, sex gen-
4
1 der or national origin, in any of the following and subsections. It shall be a
2 prohibited act to discriminate against a person because of or on the basis of
3 age or disability in subsections (1), (2), (3) and (4) of this section. It
4 shall be a prohibited act to discriminate against a person because of, or on
5 the basis of, disability in subsections (1), (2), (3) and (4) of this section,
6 provided that the prohibition against discrimination because of disability
7 shall not apply if the particular disability, even with a reasonable accommo-
8 dation, by the employer, prevents the performance of the work required by the
9 employer in that job in subsections (6), (8), (9), (10) and (11) of this sec-
10 tion. The prohibition to discriminate shall also apply to persons with dis-
11 abilities in real property transactions in subsections (7), (8), (9) and (10)
12 of this section, and to those individuals without disabilities who are associ-
13 ated with a person with a disability.
14 (1) For an employer to fail or refuse to hire, to discharge, or to other-
15 wise discriminate against an individual with respect to compensation or the
16 terms, conditions or privileges of employment or to reduce the wage of any
17 employee in order to comply with this act chapter;
18 (2) For an employment agency to fail or refuse to refer for employment,
19 or otherwise to discriminate against an individual or to classify or refer an
20 individual for employment;
21 (3) For a labor organization;:
22 (a) tTo exclude or to expel from membership, or to otherwise discriminate
23 against, a member or applicant for membership,
24 (b) tTo limit, segregate or classify membership, or to fail or refuse to
25 refer for employment an individual in any way,
26 1. wWhich would deprive an individual of employment opportunities,
27 or
28 2. wWhich would limit employment opportunities or adversely affect
29 the status of an employee or of an applicant for employment, or
30 (c) tTo cause or attempt to cause an employer to violate this act
31 chapter.
32 (4) For an employer labor organization or employment agency to print or
33 publish or cause to be printed or published a notice or advertisement relating
34 to employment by the employer or membership in or a classification or referral
35 for employment by the labor organization, or relating to a classification or
36 referral for employment by an employment agency, indicating a preference, lim-
37 itation, specification or discrimination; but a notice or advertisement may
38 indicate a preference limitation, specification, or discrimination when such
39 is a bona fide occupational qualification for employment;
40 (5) For a person;:
41 (a) tTo deny an individual the full and equal enjoyment of the goods,
42 services, facilities, privileges, advantages and accommodations of a place
43 of public accommodation, or
44 (b) tTo print, circulate, post, or mail or otherwise cause to be pub-
45 lished a statement, advertisement or sign which indicates that the full
46 and equal enjoyment of the goods, services, facilities, privileges, advan-
47 tages of a place of public accommodation will be refused, withheld from,
48 or denied an individual or that an individual's patronage of or presence
49 at a place of public accommodation is objectionable, unwelcome, unaccept-
50 able, or undesirable.
51 (6) For a person who owns, leases or operates a place of public accommo-
52 dation:
53 (a) To deny an individual on the basis of disability the full and equal
54 enjoyment of the goods, services, facilities, privileges, advantages or
55 accommodations of a place of public accommodation;
5
1 (b) To impose or apply eligibility criteria that screen out or tend to
2 screen out an individual with a disability or any class of individuals
3 with disabilities from fully and equally enjoying any goods, services,
4 facilities, privileges, advantages or accommodations of a place of public
5 accommodation, unless such criteria can be shown to be necessary for the
6 provision of the goods, services, facilities, privileges, advantages or
7 accommodations being offered;
8 (c) To fail to make reasonable modifications in policies, practices, or
9 procedures when such modifications are necessary to afford such goods,
10 services, facilities, privileges, advantages, or accommodations to indi-
11 viduals with disabilities, unless the entity can demonstrate that making
12 such modifications would fundamentally alter the nature of such goods;
13 (d) To fail to take such steps as may be necessary to ensure that no
14 individual with a disability is excluded, denied services, segregated or
15 otherwise treated differently than other individuals because of the
16 absence of auxiliary aids and services, unless the entity can demonstrate
17 that taking such steps would fundamentally alter the nature of the goods,
18 services, facilities, privileges, advantages, or accommodations being
19 offered or would result in an undue burden;
20 (e) To fail to remove architectural barriers and communication barriers
21 that are structural in nature, in existing facilities and transportation
22 barriers in existing vehicles used by an establishment for transporting
23 individuals (not including barriers that can only be removed through
24 retrofitting of vehicles), where such removal is readily achievable; or
25 (f) Where an entity can demonstrate that the removal of a barrier under
26 paragraph (e) of this subsection is not readily achievable, to fail to
27 make such goods, services, facilities, privileges, advantages or accommo-
28 dations available through alternative methods if such methods are readily
29 achievable.
30 (7) For an educational institution;:
31 (a) tTo exclude, expel, limit, or otherwise discriminate against an indi-
32 vidual seeking admission as a student or an individual enrolled as a stu-
33 dent in the terms, conditions, and privileges of the institution, or
34 (b) tTo make or use a written or oral inquiry or form of application for
35 admission that elicits or attempts to elicit information, or to make or
36 keep a record, of an applicant for admission, except as permitted by the
37 regulations of the commission,
38 (c) tTo print or publish or cause to be printed or published a catalogue
39 or other notice or advertisement indicating a preference, limitation,
40 specification, discrimination of an applicant for admission, or
41 (d) tTo announce or follow a policy of denial or limitation through a
42 quota or otherwise of educational opportunities of a group or its members.
43 (78) For an owner or any other person engaging in a real estate transac-
44 tion, or for a real estate broker or salesman;:
45 (a) tTo refuse to engage in a real estate transaction with a person,
46 (b) tTo discriminate against a person in the terms, conditions or privi-
47 leges of a real estate transaction or in the furnishing of facilities or
48 services in connection therewith,
49 (c) tTo refuse to receive or to fail to transmit a bona fide offer to
50 engage in a real estate transaction from a person,
51 (d) tTo refuse to negotiate a real estate transaction with a person,
52 (e) tTo represent to a person that real property is not available for
53 inspection, sale, rental, or lease when in fact it is so available, or to
54 fail to bring a property listing to his attention, or to refuse to permit
55 him to inspect real property,
6
1 (f) tTo print, circulate, post or mail or cause to be so published a
2 statement, advertisement or sign, or to use a form of application for a
3 real estate transaction, or to make a record or inquiry in connection
4 with a prospective real estate transaction, which indicates, directly or
5 indirectly, an intent to make a limitation, specification, or discrimina-
6 tion with respect thereto,
7 (g) tTo offer, solicit, accept, use or retain a listing of real property
8 with the understanding that a person may be discriminated against in a
9 real estate transaction or in the furnishing of facilities or services in
10 connection therewith, or
11 (h) tTo refuse to permit, at the expense of a person with a disability,
12 reasonable modifications of existing premises occupied or to be occupied
13 by such person if the modifications may be necessary to afford such person
14 full enjoyment of the premises. Provided, that, in the case of a rental,
15 the landlord may, where it is reasonable to do so, condition permission
16 for a modification on the renter agreeing to restore the interior, exte-
17 rior, or both, of the premises, to the condition that existed before the
18 modification, reasonable wear and tear excepted. The provision for restor-
19 ation shall be included in any lease or rental agreement.
20 (89) For a person to whom application is made for financial assistance in
21 connection with a real estate transaction or for the construction, rehabilita-
22 tion, repair, maintenance, or improvement of real property, or a representa-
23 tive of such a person;:
24 (a) tTo discriminate against the applicant,
25 (b) tTo use a form of application for financial assistance or to make or
26 keep a record or inquiry in connection with applications for financial
27 assistance which indicates directly or indirectly, an intent to make a
28 limitation, specification, or discrimination.
29 (910) To insert in a written instrument relating to real property a provi-
30 sion which purports to forbid or restrict the conveyance, encumbrance, occu-
31 pancy or lease thereof;
32 (101) For a person for the purpose of inducing a real estate transaction
33 from which he may benefit financially;:
34 (a) tTo represent that a change has occurred or will or may occur in the
35 composition of the owners or occupants in the block, neighborhood, or area
36 in which the real property is located, or
37 (b) tTo represent that this change will or may result in the lowering of
38 property values, an increase in criminal or anti-social antisocial behav-
39 ior, or a decline in the quality of schools in the block, neighborhood, or
40 area in which the real property is located.
41 SECTION 5. That Section 67-5910, Idaho Code, be, and the same is hereby
42 amended to read as follows:
43 67-5910. LIMITATIONS. (1) This act chapter does not apply to a religious
44 corporation, association, or society with respect to the employment of indi-
45 viduals of a particular religion to perform work connected with the carrying
46 on by the corporation, association, or society of its religious activities.
47 (2) It is not a discriminatory practice;:
48 (a) fFor an employer to employ an employee, or an employment agency to
49 classify or refer for employment an individual, for a labor organization
50 to classify its membership or to classify or refer for employment an indi-
51 vidual, or for an employer, labor organization, or joint labor-management
52 committee controlling an apprenticeship or other training or retraining
53 program, on the basis of his religion, sex gender, national origin, or
7
1 age if religion, sex gender, national origin, or age is a bona fide occu-
2 pational qualification reasonably necessary to the normal operation of the
3 business or enterprise, or
4 (b) fFor an employer, employment agency, or labor organization to observe
5 the terms of a bona fide seniority system or any bona fide employee bene-
6 fit plan such as a retirement, pension, or insurance plan, which is not a
7 subterfuge to evade the purposes of this act chapter, except that no such
8 employee benefit plan shall excuse the failure to hire any individual, and
9 no such seniority system or employee benefit plan shall require or permit
10 involuntary retirement of any individual specified in subsection (79) of
11 this section because of the age of such individual; however, the prohibi-
12 tion against age discrimination contained in this act chapter shall not be
13 construed to prohibit compulsory retirement if such retirement is permit-
14 ted under the terms of 29 U.S.C., section 631(c)(1) and (2), or
15 (c) fFor a religious educational institution or an educational organiza-
16 tion to limit employment or give preference to members of the same reli-
17 gion, or
18 (d) fFor an employer, employment agency, or labor organization to dis-
19 criminate against a person with a disability which, under the circum-
20 stances, poses a serious direct threat to the health or safety of the per-
21 son with a disability or others. The burden of proving this defense is
22 upon the employer, labor organization, or employment agency.
23 (3) Nothing in this chapter shall require a person who owns, leases or
24 operates a place of public accommodation, to permit an individual with a dis-
25 ability to participate in or benefit from the goods, services, facilities,
26 privileges, advantages and accommodations of such place of public accommoda-
27 tion, where such individual poses a direct threat to the health or safety of
28 others. The burden of proving this defense is upon the person who owns, leases
29 or operates a place of public accommodation.
30 (4) This act chapter does not apply to a private club, or other estab-
31 lishment not in fact open to the public, except to the extent that the goods,
32 services, facilities, privileges, advantages or accommodations of the estab-
33 lishment are made available to the customers or patrons of another establish-
34 ment that is a place of public accommodation.
35 (5) The provisions of section 67-5909(6), Idaho Code, do not apply to:
36 (a) Any agency of or any governmental entity within the state; or
37 (b) Religious organizations or entities controlled by religious organiza-
38 tions, including places of worship.
39 (46) Notwithstanding any other provisions of this act chapter, it is not
40 a discriminatory practice for;:
41 (a) aA religious educational institution or an educational institution
42 operated, supervised, or controlled by a religious institution (operated,
43 supervised, or controlled by a religious institution) or organization to
44 limit admission or give preference to applicants of the same religion, or
45 (b) aAn educational institution to accept and administer an inter vivos
46 or testamentary gift upon the terms and conditions prescribed by the
47 donor.
48 (57) The provisions of section 67-5909(78), Idaho Code, do not apply;:
49 (a) tTo the rental of a housing accommodation in a building which con-
50 tains housing accommodations for not more than two (2) families living
51 independently of each other, if the lessor or a member of his family
52 resides in one (1) of the housing accommodations, or
53 (b) tTo the rental of a room or rooms in a housing accommodation by an
54 individual if he or a member of his family resides therein.
55 (68) It is not a discriminatory practice for a religious institution or
8
1 organization or a charitable or educational organization operated, supervised
2 or controlled by a religious institution or organization to give preference to
3 members of the same religion in a real property transaction.
4 (79) The prohibitions against discrimination based on age contained in
5 this act chapter shall be limited to individuals who are at least forty (40)
6 years of age.
7 SECTION 6. That Section 67-5911, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 67-5911. REPRISALS FOR OPPOSING UNLAWFUL PRACTICES. It shall be unlawful
10 for an employer, employment agency, or labor organization a person or any
11 business entity subject to regulation by this chapter to discriminate against
12 any individual because he or she has opposed any practice made unlawful by
13 this act chapter or because such individual has made a charge, testified,
14 assisted, or participated in any manner in an investigation, proceeding, or
15 litigation under this act chapter.
STATEMENT OF PURPOSE
RS 14792C1
A task force, spearheaded by the Idaho State Independent Living Council
(SILC)and the Idaho Task Force on the Americans with Disabilities Act
(ADA), with members drawn from disability organizations, the state
legislature, state government, city and county representatives,
businesses, employers, and the Governor's office, has worked on
developing this legislation over the past year and a half. The
legislation would do the following:
Strengthen the Human Rights Act by adding disability to the current
prohibitions of discrimination in connection with public accommodations
(private businesses).
Provide a user friendly, one-stop destination for businesses and people
with disabilities to easily access mediation and/or enforcement on a
local level, through the Human Rights Commission.
Allow better access to persons with disabilities while recognizing the
legitimate needs of Idaho's private businesses.
Define "readily achievable" as something that a private business can do
without much difficulty or expense.
The proposed changes add to state law those obligations already
applicable to private businesses under federal law. Government entities
are not affected by the changes regarding places of public accommodation.
FISCAL NOTE
The fiscal impact will be $20,000 per year. This figure was calculated
based on average statistics provided to the Idaho Human Rights Commission
by Washington, Alaska and Oregon.
Contact
Name: Kelly Buckland
Phone: 208-334-3800
STATEMENT OF PURPOSE/FISCAL NOTE H 201