Shedding Light on the Antidiscrimination Act Amendments
The Utah State Legislature’s 2016 amendments to the Utah Antidiscrimination Act recently took effect. The law now offers more protection to employees who are pregnant or who have pregnancy-related conditions. The law also provides additional potential remedies for complaining parties in cases involving discrimination in compensation.
Reasonable Accommodations for Pregnancy and Related Conditions Under the Utah Antidiscrimination Act
Prior to the amendments, the law protected pregnant employees, and employees with pregnancy-related conditions, from discrimination. The amendments take the law one step further. They require an employer to make a reasonable accommodation for pregnancy, child birth, breastfeeding, or a related condition, if the employee requests such an accommodation. Utah Code § 34A-5-106(1)(g) (2016).
Additionally, unless the employer can show the reasonable accommodation is an undue hardship – “an action that requires significant difficulty or expense when considered in relation to factors such as the size of the entity, the entity”s financial resources, and the nature and structure of the entity’s organization,” id. at § 5-102(1)(w) – it cannot require an employee to end the employment if a reasonable accommodation can be given, or deny employment opportunities to the employee if the denial is based on the need to make a reasonable accommodation. Id. What is considered to be a reasonable accommodation is based on the facts of each case. However, the amendments make it clear that an employer is not required to allow an employee to bring a child to work. Id. at § 5-106(7)(d). The law also provides that an employer may require an employee seeking a reasonable accommodation based on pregnancy or a related condition to provide a medical certification. Id. at § 5-106(7)(a). The certification shall include the date the reasonable accommodation becomes medically advisable, the probable duration of the accommodation, and a statement as to the medical advisability of the accommodation. Id. at § 5-106(7)(a). However, the employer may not require a medical certification for reasonable accommodations of more frequent restroom, food, or water breaks related to pregnancy or a related condition. Id. at § 5-106(7)(c). Employers also must now provide notice of the law regarding reasonable accommodations related to pregnancy or related conditions. An employer must include information in its employee handbook or post notice of these rights in a conspicuous place. Id. at § 5-106(7)(e). Employers may contact the Antidiscrimination and Labor Division for more information regarding the posting requirements.
The Legislature also amended the law regarding the requirement that employers provide a storage place for breast milk. As before, employers must provide access to a clean and well-maintained refrigerator or freezer to store breast milk. Id. at § 34-49-22(3)(a). However, the law provides a new exception for public employers whose employee is not working in an office building, in which case, the employer may provide an insulated container for the employee to store breast milk. Id. at § 49-202(3)(b).
Additional Possible Remedies in Compensation Discrimination Cases
Prior to the recent statutory amendments, relief for complaining parties was more limited. The law provided that if the Division found that a respondent had engaged in a discriminatory or prohibited employment practice, the presiding officer should order the respondent to: 1) cease the practice, and 2) provide relief to the complaining party. Utah Code § 34A-5-107(9) (2015). Under the old law, relief was limited to: reinstatement, back pay and benefits, attorney fees, and costs. Id. at § 34A-5-107(9)(b).
The recent amendments provide more potential relief for complaining parties. In cases that include discrimination in compensation, in addition to the relief provided before the law was updated, the Division may now order an additional amount equal to the back pay amount to the complaining party. Utah Code § 34A-5-107(10). There is an exception to this relief being ordered where the respondent has shown that: 1) the act or omission that gave rise to the order was in good faith; and, 2) the respondent had reasonable grounds to believe that the act or omission was not discrimination in compensation. § 34A-5-107(10)(a)-(b) (2016). For the exception to apply, the respondent must establish both prongs.
Although the 2016 amendments to the Utah Antidiscrimination Act are few, they are significant. They have the potential to greatly impact employers and employees in Utah.
Alison A. Adams-Perlac is director of the Utah Antidiscrimination and Labor Division.