House of Representatives

HB 2319

civil rights omnibus

Sponsors: Representatives Voss, Landrum, Allen et al

DPA	Committee on Judiciary
X	Committee on Retirement & Government Operations
	Caucus and COW
	As Passed the House

HB 2319 makes substantive and technical changes to Arizona civil rights law.

History

The Arizona Civil Rights Act was enacted in 1965. In its current form, it offers protections to persons with regard to voting rights, public accommodations, employment and housing on the basis of race, color, religion, gender, age, disability or national origin. Some of these same protections exist under federal law in Title VII of the 1964 Civil Rights Act. In some cases, federal law provides protection to broader classes of people and authorizes compensatory and punitive damages for a civil cause of action.

Congress enacted the Americans with Disabilities Act (ADA) in 1990. At the time of its enactment, most states, including Arizona, already had protections in statute for persons with disabilities. Currently, Alabama, Arizona, and Mississippi are the only states that have no employment protection for persons based on a mental disability. The other 47 states and the District of Columbia afford employment protections to persons based both on mental and physical disability.

Two recent United States Supreme Court decisions have held that state employees can no longer receive monetary damages from their employer under the Age Discrimination in Employment Act (ADEA) and ADA because of the immunity afforded the states under the Eleventh Amendment to the U.S. Constitution. Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000), Board of Trustees of the Univ. of Alabama v. Garrett, --- S.Ct.--- (2001), 2000 WL 33179681 (U.S.Ala.).

Under Arizona law, the Attorney General’s Civil Rights Division may only seek relief on behalf of a victim of discrimination in the name of the aggrieved party. Compensatory and punitive damages are not currently available to an aggrieved party under Arizona employment law, although under Arizona’s housing law an aggrieved party may be awarded compensatory and punitive damages, and under the Arizonans with Disabilities Act, compensatory damages.

Provisions

General

· Changes certain terms throughout Arizona civil rights statutes:

1. handicap to disability

2. sex to gender

3. creed to religion

· Adds sexual orientation and gender identity as protected classes for purposes of employment, housing, public accommodations and voting.

Employment

· Extends the time period to file a court action from one to two years, excluding time for subpoena enforcement and equitable tolling.

· Authorizes the court to award compensatory and punitive damages for a violation of Arizona civil rights law. Makes an exception if the discriminatory practice involves the provision of a reasonable accommodation and the covered entity demonstrated good faith efforts to identify and make a reasonable accommodation.

· Specifies that punitive damages may be awarded only if both:

1. The complaining party demonstrates that the defendant engaged in a discriminatory practice with malice or reckless indifference.

2. The defendant is not this state or an agency or political subdivision of this state.

· Specifies that compensatory damages awarded under the Arizona Civil Rights Act do not include back pay or interest on back pay. Compensatory damages awarded for future monetary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonmonetary losses and the amount of punitive damages awarded under the Arizona Civil Rights Act for each complaining party are capped at:

1. $50,000 if the defendant has more than 14 but fewer than 101 employees.

2. $100,000 if the defendant has more than 100 but fewer than 201 employees.

3. $200,000 if the defendant has more than 200 but fewer than 501 employees.

4. $300,000 if the defendant has more than 500 employees.

· Allows a complaining party who seeks compensatory or punitive damages to demand a trial by jury and prohibits the court from informing the jury of the monetary limitations as set forth above.

· Defines complaining party and discriminatory practice.

· Adds mental disability, gender identity and sexual orientation as protected classes for purposes of employment discrimination.

· Defines covered entity, mental disability, gender identity, sexual orientation.

· Includes current or recent alcohol use as a disability.

· Redefines qualified individual with a disability.

· Changes the current definition of reasonable accommodation to include:

1. Making existing facilities readily accessible to individuals with disabilities.

2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar accommodations for individuals with disabilities.

· Defines undue hardship as an action requiring significant difficulty or expense. Factors to consider include:

1. The nature and cost of the accommodations needed.

2. The overall financial resources of the facility involved in the provision of reasonable accommodation, the number of persons employed at the facility, the effect on expenses and resources of the facility and any other impact of the accommodation on the operation of the facility.

3. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees and the number, type and location of its facilities.

4. The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of the covered entity.

5. The geographic separateness and the administrative and fiscal relationship of the facility to the covered entity.

· Adds age as a protected class for purposes of apprenticeship, job training or retraining. For purposes of Arizona law, this only applies to persons over 40 years of age.

· Identifies specific prohibited discriminatory practices related to an individual with a disability.

· Removes the disability exception from seniority and professionally developed ability tests.

· Prohibits the use of medical tests and inquiries of a job applicant by a covered entity as to whether the applicant has a disability or as to the nature or severity of the disability. However, a covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions; the covered entity may also require a medical examination after an offer of employment has been made and before commencement of employment duties if:

1. All entering employees are subject to the examination;

2. Information obtained from the examination is treated as a confidential record except that the covered entity:

a) May inform supervisors and managers of necessary restrictions on the work or duties of the employee and necessary accommodations.

b) When appropriate, may inform first aid and safety personnel if the disability might require emergency treatment.

c) On request, must provide relevant information to government officials investigating compliance with this article.

· Prohibits a covered entity from requiring a medical examination or making inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability unless the examination or inquiry is job-related and consistent with business necessity.

· Authorizes a covered entity to conduct voluntary medical examinations that are part of an employee health program available to employees and to make inquiries into the ability of an employee to perform job-related functions.

· Stipulates that a test to determine the illegal use of drugs is not a medical examination.

· Defines essential job functions by specifying factors for determining what functions of a job are essential. These include the employer’s judgment and a written job description if prepared before advertising or interviewing applicants for the job.

Voting

· Adds disability, gender identity and sexual orientation as protected classes for purposes of voting rights.

· Defines disability, gender identity and sexual orientation.

Public Accommodations

· Adds gender, gender identity and sexual orientation as protected classes for purposes of public accommodations.

· Defines gender identity and sexual orientation.

Civil Rights Division Enforcement Procedures for Voting and Public Accommodations

· Extends the period for filing a charge alleging a discriminatory practice from 60 to 180 days.

· Authorizes the Civil Rights Division of the Office of the Attorney General to file a charge on its own initiative.

· Removes current provision for hearings before the Arizona Civil Rights Advisory Board. Adds a provision to allow the Civil Rights Division to file a civil action in state court.

· Repeals the current provision of law that caps any civil penalty imposed as a result of a violation of Arizona voting or public accommodations law at a $300.

· Establishes new guidelines for damages in cases brought under Arizona voting or public accommodations law. Authorizes the superior court to award to the charging party:

1. Actual and compensatory damages, including damages for emotional distress.

2. Reasonable attorney fees

3. Court costs.

4. Preventive relief, including a permanent or temporary injunction, a restraining order or any other order.

5. In a case brought by the Attorney General, the court may further assess a civil penalty against the person responsible for the violation of not more than $5,000 for the first violation and not more than $10,000 for each subsequent violation.

HB 2319 was amended in the Judiciary Committee as follows:

· Removes sexual orientation and gender identity as protected classes throughout the bill.

· Allows an employer to condition an offer of employment on the results of a medical examination.

· Adds a different remedy for employment discrimination on the basis of age. The remedy does not allow for compensatory and punitive damages, but allows for liquidated damages.

· Adds a different remedy for employment discrimination as defined by the Equal Pay Act of 1963. The Equal Pay Act prohibits discrimination in pay based on gender. The remedy does not allow for compensatory and punitive damages, but allows for liquidated damages.

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· 45th Legislature

· First Regular Session 5 March 9, 2001

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