HB2351 - 502R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 41-1461, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1461. Definitions

In this article, unless the context otherwise requires:

1. "Auxiliary aids and services" includes:

(a) Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments.

(b) Qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments.

(d) Other similar services and actions.

2. "Being regarded as having such a physical or mental impairment":

(a) Means an individual who establishes that the individual has been subjected to an action prohibited under this article because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

(b) Does not mean an impairment that is transitory and minor. For the purposes of this subdivision, "transitory impairment" means an impairment with an actual or expected duration of six months or less.

3. "Covered entity" means an employer, employment agency, labor organization or joint labor‑management committee.

4. "Disability" means, with respect to an individual, except any impairment caused by current use of illegal drugs, any of the following:

(a) A physical or mental impairment that substantially limits one or more of the major life activities of the individual.

(b) A record of such a physical or mental impairment.

5. "Employee":

(a) Means an individual employed by an employer.

(b) Does not include an elected public official of this state or any political subdivision of this state, any person chosen by an elected official to be on the elected official's personal staff, an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office, unless the person or appointee is subject to the civil service laws of this state or any political subdivision of this state.

6. "Employer":

(a) Means a person who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of that person, except that to the extent that any person is alleged to have committed any act of sexual harassment, employer means, for purposes of administrative and civil actions regarding those allegations of sexual harassment and associated protected activity pursuant to section 41‑1464, subsection A, a person who has one or more employees in the current or preceding calendar year.

(b) Does not include either:

(i) The United States or any department or agency of the United States, a corporation wholly owned by the government of the United States or an Indian tribe.

(ii) A bona fide private membership club, other than a labor organization, that is exempt from taxation under section 501(c) of the internal revenue code of 1954.

7. "Employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of that person.

8. "Labor organization":

(a) Means a labor organization and any agent of a labor organization.

(b) Includes:

(i) Any organization of any kind, any agency or employee representation committee, group, association or plan in which fifteen or more employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment.

(ii) Any conference, general committee, joint or system board or joint council that is subordinate to a national or international labor organization.

9. "Major life activities" includes:

(a) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

(b) The operation of a major bodily function, including functions of the immune system, normal cell growth and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

10. "Person" means one or more individuals, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint‑stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy or receivers.

11. "Qualified individual" means a person with a disability who, with or without reasonable accommodation, is capable of performing the essential functions of the employment position that the individual holds or desires.

12. "Reasonable accommodation" includes:

(a) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.

(b) 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, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments, the provision of auxiliary aids and services or interpreters and other similar services and actions for individuals with disabilities.

13. "Religion" means all aspects of religious observance and practice, as well as belief. Unlawful practices as prohibited by this article include practices with respect to religion unless an employer demonstrates that the employer is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

14. "Undue hardship":

(a) Means an action requiring significant difficulty or expense when considered in light of the factors set forth in subdivision (b) of this paragraph.

(b) When determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include:

(i) The nature and cost of the accommodations needed under this article.

(ii) The overall financial resources of the facility or facilities involved in the provision of the 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.

(iii) 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.

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

(v) The geographic separateness and the administrative or fiscal relationship of the facility to the covered entity. END_STATUTE

Sec. 2. Section 41-1481, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1481. Filing charges; investigation; findings; conciliation; compliance proceedings; civil action; appeals; attorney fees; violation; classification; definitions

A. A charge under this section shall be filed within one hundred eighty days after the alleged unlawful employment practice occurred. A charge is deemed filed upon receipt by the division from or on behalf of a person claiming to be aggrieved or, if filed by a member of the division, when executed by such member upon oath or affirmation. A charge is deemed filed by or on behalf of a person claiming to be aggrieved if received from the United States equal employment opportunity commission. A charge shall be in writing upon oath or affirmation and shall contain such information, including the date, place and circumstances of the alleged unlawful employment practice, and be in such form as the division requires. Charges shall not be made public by the division.

B. Whenever a charge is filed by or on behalf of a person claiming to be aggrieved or by a member of the division, referred to as the charging party, alleging that an employer, employment agency, labor organization or joint labor‑management committee controlling apprenticeship or other training or retraining programs, including on‑the‑job training programs, has engaged in an unlawful employment practice, the division shall serve notice of and a copy of the charge on such employer, employment agency, labor organization or joint labor‑management committee, referred to as the respondent, within ten days and shall make an investigation of the charge. If the division determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall enter an order determining the same and dismissing the charge and shall notify the charging party and the respondent of its action. If the division determines after such investigation that there is reasonable cause to believe that the charge is true, it shall enter an order containing its findings of fact and shall endeavor to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation and persuasion. Any party to such informal proceeding may be represented by counsel. Counsel need not be a member of the state bar if he is licensed to practice law in any other state or territory of the United States. Nothing said or done during and as a part of such informal endeavors may be made public by the division or its officers or employees or used as evidence in a subsequent proceeding without the written consent of the persons concerned. If a civil action resulting from a charge is commenced in any federal or state court, evidence collected by or submitted to the division during the investigation of the charge and the source of the evidence shall be subject to discovery by the parties to the civil action. Any person who makes public information in violation of this subsection is guilty of a class 1 misdemeanor. The division shall make its determination on reasonable cause as promptly as possible and as far as practicable not later than sixty days from the filing of the charge. If more than two years have elapsed after the alleged unlawful employment practice occurred, and if the charging party has received a notice of right to sue, the division may cease investigation of a charge without reaching a determination.

C. All conciliation agreements shall provide that the charging party waives, releases and covenants not to sue the respondent or claim against the respondent in any forum with respect to the matters which were alleged as charges filed with the division, subject to performance by the respondent of the promises and representations contained in the conciliation agreement. The charging party or the respondent may prepare a conciliation agreement which the division shall submit to the other party and which, if accepted by the other party, shall be accepted by the division.

D. If within thirty days after the division has made a determination that reasonable cause exists to believe that the charge is true the division has not accepted a conciliation agreement to which the charging party and the respondent are parties, the division may bring a civil action against the respondent, other than the state, named in the charge. The charging party shall have the right to intervene in a civil action brought by the division. If a charge filed with the division pursuant to subsection A of this section is dismissed by the division or if within ninety days from the filing of such charge the division has not filed a civil action under this section or has not entered into a conciliation agreement with the charging party, the division shall so notify the charging party. Within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge by the charging party or, if such charge was filed by a member of the division, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. In no event shall any action be brought pursuant to this article more than one year two years after the charge to which the action relates has been filed. The two year period does not include any time that elapses between the filing of any court procedure to enforce an administrative subpoena and the final resolution of that enforcement action. The two year period is not jurisdictional but is a statute of limitations subject to the principles of estoppel, tolling and waiver. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs or security. Upon timely application, the court may in its discretion permit the division to intervene in civil actions in which the state is not a defendant upon certification that the case is of general public importance. Upon request the court may stay further proceedings for not more than sixty days pending the further efforts of the parties or the division to obtain voluntary compliance.

E. Whenever a charge is filed with the division and the division concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this article or article 4 of this chapter, the division may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with the supreme court Arizona rules of civil procedure. The court having jurisdiction over such proceedings shall assign such action for hearing at the earliest practicable date and cause the action to be expedited in every way.

F. The court shall assign any action brought under this article for hearing at the earliest practicable date and cause the action to be in every way expedited. If the action has not been scheduled for trial within one hundred twenty days after issue has been joined, the judge may appoint a master pursuant to rule 53 of the supreme court Arizona rules of civil procedure.

G. If the court finds that the defendant has intentionally engaged in or is intentionally engaging in an unlawful employment practice alleged in the complaint, the court may enjoin the defendant from engaging in such unlawful employment practice and order such affirmative action as may be appropriate. Affirmative action may include, but is not limited to, reinstatement or hiring of employees with or without back pay payable by the employer, employment agency or labor organization responsible for the unlawful employment practice or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of the charge with the division. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement or promotion of an individual as an employee or the payment to him of any back pay if such individual was refused admission, suspended or expelled or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, age, handicap or national origin or a violation of section 41‑1464.

H. In an action brought by a complaining party against a defendant who engaged in an unlawful employment practice that is prohibited by this chapter, the recovering party may recover punitive or compensatory damages pursuant to subsections I and J of this section in addition to any relief pursuant to subsection G of this section, except that in cases in which an unlawful employment practice involves the provision of a reasonable accommodation under section 41-1463, subsection F, paragraph 4, punitive or compensatory damages shall not be awarded under this section if the covered entity demonstrates good faith efforts, in consultation with the qualified individual who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide the individual with an equally effective opportunity and would not cause undue hardship on the operation of the business.

I. A complaining party may recover punitive damages under this section against a defendant if both of the following apply:

1. The complaining party demonstrates that the defendant engaged in an unlawful employment practice with malice or with reckless indifference to the statutorily protected rights of an aggrieved individual under this chapter.

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

J. Compensatory damages awarded under this section shall not include back pay, interest on back pay or any other type of relief authorized under subsection G of this section. The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses and the amount of punitive damages awarded under this section shall not exceed the following for each complaining party:

1. If a defendant has more than one but not more than one hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year, fifty thousand dollars.

2. If a defendant has more than one hundred but not more than two hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year, one hundred thousand dollars.

3. If a defendant has more than two hundred but not more than five hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year, two hundred thousand dollars.

4. If a defendant has more than five hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year, three hundred thousand dollars.

K. If a complaining party seeks punitive or compensatory damages under this section, both of the following apply:

1. Any party may demand a trial by jury.

2. The court shall not inform the jury of the limitations prescribed in subsection J of this section.

H. l. In any case in which an employer, employment agency or labor organization fails to comply with an order of a court issued in a civil action brought under this section, a party to the action or the division upon the written request of a person aggrieved by such failure may commence proceedings to compel compliance with such order.

I. m. Any civil action brought under this section and any proceedings brought under subsection H l of this section are subject to appeal as provided in sections 12‑120.21, 12‑120.22 and 12‑120.24.

J. n. In any action or proceeding under this section the court may allow the prevailing party, other than the division, a reasonable attorney's fee attorney fees as part of the costs.

O. For the purposes of this section:

1. "Complaining party" means any charging party, the division and, in instances where a charge is filed by a member of the division, any person who a charge alleges was aggrieved by an unlawful employment practice.

2. "Unlawful employment practice" means any unlawful employment practice and unlawful practice that is described in sections 41‑1463 and 41‑1464. END_STATUTE