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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 ACTCHAPTER. The general purposes of this actchapter 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 orgender, national origin or 26 disability in connection with employment, public accommodations, educationand 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 disabilityin connection with employment, and discrimination because30 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 actchapter, unless the context otherwise 38 requires: 39 (1) "Commission" means the commission on human rights created by this act40 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 actchapter; 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 governor36 shall specify the term of each member, so that the terms of three (3) members37 expire each year. The terms of office of members of the commission holding38 office prior to July 1, 1974, shall terminate on July 1, 1974, and within39 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, sexgen- 4 1 der or national origin, in any of the following andsubsections. It shall be a 2 prohibited act to discriminate against a person because of or on the basis of 3 age or disabilityin 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 the9 employerin 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 tothose 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 actchapter; 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 act31 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 (1 01) 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-socialantisocial 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 actchapter 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, sexgender, national origin, or 7 1 age if religion, sexgender, 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 actchapter, 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 actchapter 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 seriousdirect 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 actchapter 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 actchapter, 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 actchapter 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 organizationa 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 actchapter 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 actchapter.
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