SB1365 - 541R

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

Section 1. Section 41-1403, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1403. Right to examine and copy evidence; summoning witnesses and documents and taking testimony; right to counsel; court aid; process; service and return; fees of witnesses

A. In connection with the investigation of a charge filed under this chapter, the division or its duly authorized employees shall at all reasonable times have access to, for the purpose of examination, and have the right to copy any evidence of any person being investigated, provided such if the evidence relates to unlawful practices covered by this chapter and is relevant to the charge under investigation.

B. For the purpose of all hearings and investigations conducted by the board or division:

1. The division, on its own initiative, or upon on application of any party to the proceeding, may issue subpoenas compelling the attendance and testimony of witnesses or requiring the production for examination or copying of documents provided such if the evidence relates to unlawful practices covered by this chapter and is relevant to the charge which that is the subject matter of the hearing or investigation. Within five fourteen days after the service of a subpoena on any person requiring the production of any evidence in his the person's possession or under his the person's control, such the person may petition the division to revoke, limit or modify the subpoena. The division shall revoke, limit or modify such the subpoena if in its opinion the evidence required does not relate to unlawful practices covered by this chapter, is not relevant to the charge which that is the subject matter of the hearing or investigation, does not describe with sufficient particularity the evidence whose production is required, or is unduly burdensome or oppressive. Any member of the division, or any agent designated by the division may administer oaths or affirmations, examine witnesses and receive such the evidence.

2. Any person appearing before the division or the board shall have has the right to be represented by counsel.

3. The superior court, upon on application by the division or by the person subpoenaed, shall have has jurisdiction to issue an order (a) requiring such the person to appear before the division, the board or the duly authorized agent of either, there to produce evidence relating to the matter under investigation if so ordered, or (b) revoking, limiting or modifying the subpoena or conditioning issuance of the subpoena upon on payment of costs or expenses incurred to comply with the subpoena if in the court's opinion the evidence required does not relate to unlawful practices covered by this chapter, is not relevant to the charge which that is the subject matter of the hearing or investigation, does not describe with sufficient particularity the evidence whose production is required or is unduly burdensome or oppressive. Any failure to obey such the order of the court may be punished by such the court as a contempt.

4. Charges, orders, and other process and papers of the division, the board, or the agent of either, may be served either personally or by registered mail. The verified return by the individual so serving the same, setting forth the manner of such the service, shall be proof of service. The return post office receipt when registered and mailed as provided in this paragraph shall be proof of service. Witnesses subpoenaed shall be paid the same fees and mileage that are paid witnesses in the superior court and witnesses whose depositions are taken and the persons taking the same shall be entitled to the same fees as are paid for like service in the superior court. END_STATUTE

Sec. 2. Section 41-1405, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1405. Reasonable accommodation or reasonable modification not required under certain conditions

A covered entity under article 4 or 8 of this chapter is not required to provide a reasonable accommodation or a reasonable modification to policies, practices or procedures to an individual who meets the definition of disability solely under section 41‑1461, paragraph 4 5, subdivision (c) or who meets the definition of being regarded as having such a physical or mental impairment under section 41‑1492. END_STATUTE

Sec. 3. 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. "because of sex" and "on the basis of sex" includes because of or on the basis of pregnancy or childbirth or related medical conditions.

2. 3. "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. 4. "Covered entity" means an employer, employment agency, labor organization or joint labor‑management committee.

4. 5. "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. 6. "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. 7. "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, 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. 8. "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. 9. "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. 10. "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. 11. "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. 12. "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. 13. "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. 14. "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. 15. "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. 4. Section 41-1463, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1463. Discrimination; unlawful practices; definition

A. Nothing contained in this article shall be interpreted to require that the less qualified be preferred over the better qualified simply because of race, color, religion, sex, age or national origin or on the basis of disability.

B. It is an unlawful employment practice for an employer:

1. To fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to the individual's compensation, terms, conditions or privileges of employment because of the individual's race, color, religion, sex, age or national origin or on the basis of disability.

2. To limit, segregate or classify employees or applicants for employment in any way which that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee, because of the individual's race, color, religion, sex, age or national origin or on the basis of disability.

3. To fail or refuse to hire, to discharge, or to otherwise discriminate against any individual based on the results of a genetic test received by the employer, notwithstanding subsection I J, paragraph 2 of this section.

C. It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of the individual's race, color, religion, sex, age or national origin or on the basis of disability or to classify or refer for employment any individual on the basis of the individual's race, color, religion, sex, age or national origin or on the basis of disability.

D. It is an unlawful employment practice for a labor organization:

1. To exclude or to expel from its membership or otherwise to discriminate against any individual because of the individual's race, color, religion, sex, age or national origin or on the basis of disability.

2. To limit, segregate or classify its membership or applicants for membership or to classify or fail or refuse to refer for employment any individual in any way which that would deprive or tend to deprive the individual of employment opportunities or would limit those employment opportunities or otherwise adversely affect the individual's status as an employee or as an applicant for employment because of the individual's race, color, religion, sex, age or national origin or on the basis of disability.

3. To cause or attempt to cause an employer to discriminate against an individual in violation of this section.

E. It is an unlawful employment practice for any employer, labor organization or joint labor‑management committee controlling apprenticeship or other training or retraining programs, including on‑the‑job training programs, to discriminate against any individual because of the individual's race, color, religion, sex, age or national origin or on the basis of disability in admission to or employment in any program established to provide apprenticeship or other training and, if the individual is an otherwise qualified individual, to fail or refuse to reasonably accommodate the individual's disability.

F. With respect to a qualified individual, it is an unlawful employment practice for a covered entity to:

1. Participate in any contractual or other arrangement or relationship that has the effect of subjecting a qualified individual who applies with or who is employed by the covered entity to unlawful employment discrimination on the basis of disability.

2. Use standards, criteria or methods of administration that have the effect of discriminating on the basis of disability or that perpetuate the discrimination of others who are subject to common administrative control.

3. Exclude or otherwise deny equal jobs or benefits to an individual qualified for the job or benefits because of the known disability of an individual with whom the individual qualified for the job or benefits is known to have a relationship or association.

4. Not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity or the individual only meets the definition of disability as prescribed in section 41‑1461, paragraph 4 5, subdivision (c).

5. Deny employment opportunities to a job applicant or employee who is an otherwise qualified individual if the denial is based on the need of the covered entity to make reasonable accommodation to the physical or mental impairment of the applicant or employee.

6. Use qualification standards, employment tests or other selection criteria, including those based on an individual's uncorrected vision, that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity.

7. Fail to select and administer tests relating to employment in the most effective manner to ensure that, when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills or aptitude or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual or speaking skills of the applicant or employee, except if the skills are the factors that the test purports to measure.

G. Women who are affected by pregnancy or childbirth or related medical conditions shall be treated the same for all employment‑related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and subsection J, paragraph 3 of this section may not be interpreted to allow otherwise. This subsection does not require an employer to pay for health insurance benefits for abortion, except when the life of the mother would be endangered if the fetus were carried to term or when medical complications have arisen from an abortion. This subsection does not preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

G. H. Notwithstanding any other provision of this article, it is not an unlawful employment practice:

1. For an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or classify or refer for employment any individual, or for an employer, labor organization or joint labor‑management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of the individual's religion, sex or national origin in those certain instances when religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

2. For any school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if the school, college, university or other educational institution or institution of learning is in whole or in substantial part owned, supported, controlled or managed by a particular religion or religious corporation, association or society, or if the curriculum of the school, college, university or other educational institution or institution of learning is directed toward the propagation of a particular religion.

3. For an employer to fail or refuse to hire or employ any individual for any position, for an employment agency to fail or refuse to refer any individual for employment in any position or for a labor organization to fail or refuse to refer any individual for employment in any position, if both of the following apply:

(a) The occupancy of the position or access to the premises in or upon on which any part of the duties of the position are performed or are to be performed is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any executive order of the president of the United States.

(b) The individual has not fulfilled or has ceased to fulfill that requirement.

4. With respect to age, for an employer, employment agency or labor organization:

(a) To take any action otherwise prohibited under subsection B, C or D of this section if age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or if the differentiation is based on reasonable factors other than age.

(b) To observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, deferred compensation or insurance plan, which is not a subterfuge to evade the purposes of the age discrimination provisions of this article, except that no employee benefit plan may excuse the failure to hire any individual and no seniority system or employee benefit plan may require or permit the involuntary retirement of any individual specified by section 41‑1465 because of the individual's age.

H. I. As used in for the purposes of this article, unlawful employment practice does not include any action or measure taken by an employer, labor organization, joint labor‑management committee or employment agency with respect to an individual who is a member of the communist party of the United States or of any other organization required to register as a communist‑action or communist‑front organization by final order of the subversive activities control board pursuant to the subversive activities control act of 1950.

I. j. Notwithstanding any other provision of this article, it is not an unlawful employment practice:

1. For an employer to apply different standards of compensation or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system or a system which that measures earnings by quantity or quality of production or to employees who work in different locations, provided that if these differences are not the result of an intention to discriminate because of race, color, religion, sex or national origin.

2. For an employer to give and act upon on the results of any professionally developed ability test provided that if the test, its administration or action upon on the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.

3. For any employer to differentiate upon on the basis of sex or disability in determining the amount of the wages or compensation paid or to be paid to employees of the employer if the differentiation is authorized by the provisions of section 6(d) or section 14 of the fair labor standards act of 1938, as amended (29 United States Code section 206(d)).

J. K. Nothing contained in this chapter applies to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of the business or enterprise under which a preferential treatment is given to any individual because the individual is an Indian living on or near a reservation.

K. L. Nothing contained in this article or article 6 of this chapter requires any employer, employment agency, labor organization or joint labor‑management committee subject to this article to grant preferential treatment to any individual or group because of the race, color, religion, sex or national origin of the individual or group on account of an imbalance which that may exist with respect to the total number or percentage of persons of any race, color, religion, sex or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization or admitted to or employed in any apprenticeship or other training program, in comparison with the total number or percentage of persons of that race, color, religion, sex or national origin in any community, state, section or other area, or in the available work force in any community, state, section or other area.

L. M. Nothing in the age discrimination prohibitions of this article may be construed to prohibit compulsory retirement of any employee who has attained sixty‑five years of age and who, for the two year period immediately before retirement, is employed in a bona fide executive or high policymaking position, if the employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan or any combination of plans of the employer for the employee, which that equals, in the aggregate, at least forty‑four thousand dollars $44,000. In applying the retirement benefit test of this subsection, if any retirement benefit is in a form other than a straight life annuity, with no ancillary benefits, or if employees contribute to the plan or make rollover contributions, the benefit shall be adjusted in accordance with rules adopted by the division so the benefit is the equivalent of a straight life annuity, with no ancillary benefits, under a plan to which employees do not contribute and under which no rollover contributions are made.

M. N. A covered entity may require that an individual with a disability shall not pose a direct threat to the health or safety of other individuals in the workplace. For the purposes of this subsection, "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.

N. O. This article does not alter the standards for determining eligibility for benefits under this state's workers' compensation laws or under state and federal disability benefit programs.

O. P. For the purposes of this section and section 41‑1481, with respect to employers or employment practices involving a disability, "individual" means a qualified individual. END_STATUTE

Sec. 5. Section 41-1464, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1464. Other unlawful employment practices; opposition to unlawful practices; filing of charges; participation in proceedings; notices and advertisements for employment

A. It is an unlawful employment practice for an employer to discriminate against any of his the employer's employees or applicants for employment, for an employment agency or joint labor‑management committee controlling apprenticeship or other training or retraining programs, including on‑the‑job training programs, to discriminate against any individual or for a labor organization to discriminate against any member or applicant for membership because the employee, the member, or the applicant or the individual in an apprenticeship or other training or retraining program has opposed any practice which that is an unlawful employment practice under this article or has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under article 6 of this chapter.

B. It is an unlawful employment practice for an employer, labor organization, employment agency or joint labor‑management committee controlling apprenticeship or other training or retraining programs, including on‑the‑job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization or relating to any classification or referral for employment by such an employment agency or relating to admission or to employment in any program established to provide apprenticeship or other training by such a joint labor‑management committee indicating any preference, limitation, specification or discrimination based on race, color, religion, sex or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification or discrimination based on religion, sex or national origin when religion, sex or national origin is a bona fide occupational qualification for employment.

C. It is unlawful for an employer, labor organization or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by an employer or membership in or any classification or referral for employment by a labor organization or relating to any classification or referral for employment by a labor organization or relating to any classification or referral for employment by an employment agency, indicating any preference, limitation, specification or discrimination based on age, except such a notice or advertisement may indicate a preference, limitation, specification or discrimination based on age when age is a bona fide occupational qualification for employment. END_STATUTE

Sec. 6. Section 41-1481, Arizona Revised Statutes, is amended to read:

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

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 on 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 the member upon on 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 on oath or affirmation and shall contain such the information, including the date, place and circumstances of the alleged unlawful employment practice, and be in such the form as the division requires. the division shall not make 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 the employer, employment agency, labor organization or joint labor‑management committee, referred to as the respondent, within ten days and shall make an investigation of investigate the charge. If the division determines after such the investigation that there is not reasonable cause to believe that the charge is true, it the division 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 the investigation that there is reasonable cause to believe that the charge is true, it the division 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 the informal proceeding may be represented by counsel. Counsel need not be a member of the state bar if he counsel 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 the 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 that the division shall submit to the other party and which that, 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 the notice a civil action may be brought against the respondent named in the charge by the charging party or, if such that 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 after the charge to which the action relates has been filed. Upon On application by the complainant and in such the 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 On timely application, the court may in its discretion permit allow the division to intervene in civil actions in which the state is not a defendant upon on 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 the charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with the supreme court rules of civil procedure. The court having jurisdiction over such the 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 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 the unlawful employment practice and order such the 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 An order of the court shall may not 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 the individual of any back pay if such the 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, disability or national origin or a violation of section 41‑1464.

H. 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 on the written request of a person aggrieved by such failure may commence proceedings to compel compliance with such the order.

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

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