LB670 LB670
2023 2023
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 670
Introduced by Hunt, 8.
Read first time January 18, 2023
Committee: Business and Labor
1 A BILL FOR AN ACT relating to the Nebraska Fair Employment Practice Act;
2 to amend sections 48-1101, 48-1102, 48-1104, 48-1105, 48-1106,
3 48-1107, 48-1108.01, 48-1111, 48-1113, 48-1114, 48-1115, 48-1117,
4 48-1119, 48-1121, 48-1122, and 48-1124, Reissue Revised Statutes of
5 Nebraska; to define and redefine terms; to prohibit discrimination
6 on the basis of gender identity or sexual orientation; to prohibit
7 discrimination by employers regardless of size; to provide an
8 unlawful employment practice for a covered entity; to harmonize
9 provisions; and to repeal the original sections.
10 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 48-1101, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 48-1101 It is the policy of this state to foster the employment of
4 all employable persons in the state on the basis of merit regardless of
5 their race, color, religion, sex, disability, or national origin, sexual
6 orientation, or gender identity and to safeguard their right to obtain
7 and hold employment without discrimination because of their race, color,
8 religion, sex, disability, or national origin, sexual orientation, or
9 gender identity. Denying equal opportunity for employment because of
10 race, color, religion, sex, disability, or national origin, sexual
11 orientation, or gender identity is contrary to the principles of freedom
12 and is a burden on the objectives of the public policy of this state. The
13 policy of this state does not require any person to employ an applicant
14 for employment because of his or her race, color, religion, sex,
15 disability, or national origin, sexual orientation, or gender identity,
16 and the policy of this state does not require any employer, employment
17 agency, labor organization, or joint labor-management committee to grant
18 preferential treatment to any individual or to any group because of race,
19 color, religion, sex, disability, or national origin, sexual orientation,
20 or gender identity.
21 It is the public policy of this state that all people in Nebraska,
22 both with and without disabilities, shall have the right and opportunity
23 to enjoy the benefits of living, working, and recreating within this
24 state. It is the intent of the Legislature that state and local
25 governments, Nebraska businesses, Nebraska labor organizations, and
26 Nebraskans with disabilities understand their rights and responsibilities
27 under the law regarding employment discrimination and the prevention of
28 discrimination on the basis of disability.
29 Sec. 2. Section 48-1102, Reissue Revised Statutes of Nebraska, is
30 amended to read:
31 48-1102 For purposes of the Nebraska Fair Employment Practice Act,
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1 unless the context otherwise requires:
2 (1) Person shall include one or more individuals, labor unions,
3 partnerships, limited liability companies, associations, corporations,
4 legal representatives, mutual companies, joint-stock companies, trusts,
5 unincorporated organizations, trustees, trustees in bankruptcy, or
6 receivers;
7 (2) Employer shall include a Class I employer and a Class II
8 employer;
9 (3) Class I employer shall mean a person engaged in an industry who
10 has fifteen or more employees for each working day in each of twenty or
11 more calendar weeks in the current or preceding calendar year, any agent
12 of such a person, and any party whose business is financed in whole or in
13 part under the Nebraska Investment Finance Authority Act regardless of
14 the number of employees and shall include the State of Nebraska,
15 governmental agencies, and political subdivisions, but such term shall
16 not include (a) the United States, a corporation wholly owned by the
17 government of the United States, or an Indian tribe; or (b) a bona fide
18 private membership club, other than a labor organization, which is exempt
19 from taxation under section 501(c) of the Internal Revenue Code; or (c) a
20 Class II employer;
21 (4) Class II employer shall mean a person engaged in an industry who
22 has one or more employees for each working day in each of twenty or more
23 calendar weeks in the current or preceding calendar year and any agent of
24 such a person, but such term does not include (a) the United States, a
25 corporation wholly owned by the government of the United States, or an
26 Indian tribe; (b) a bona fide private membership club, other than a labor
27 organization, which is exempt from taxation under section 501(c) of the
28 Internal Revenue Code; or (c) a Class I employer;
29 (5) (3) Labor organization shall mean any organization which exists
30 wholly or in part for one or more of the following purposes: Collective
31 bargaining; dealing with employers concerning grievances, terms, or
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1 conditions of employment; or mutual aid or protection in relation to
2 employment;
3 (6) (4) Employment agency shall mean any person regularly
4 undertaking with or without compensation to procure employees for an
5 employer or to procure for employees opportunities to work for an
6 employer and shall include an agent of such a person but shall not
7 include an agency of the United States, except that such term shall
8 include the United States Employment Service and the system of state and
9 local employment services receiving federal assistance;
10 (7) (5) Covered entity shall mean a Class I an employer, an
11 employment agency, a labor organization, or a joint labor-management
12 committee;
13 (8) (6) Privileges of employment shall mean terms and conditions of
14 any employer-employee relationship, opportunities for advancement of
15 employees, and plant conveniences;
16 (9) (7) Employee shall mean an individual employed by an employer;
17 (10) (8) Commission shall mean the Equal Opportunity Commission;
18 (11) (9) Disability shall mean (a) a physical or mental impairment
19 that substantially limits one or more of the major life activities of
20 such individual, (b) a record of such an impairment, or (c) being
21 regarded as having such an impairment. Disability shall not include
22 homosexuality, bisexuality, transvestism, transsexualism, pedophilia,
23 exhibitionism, voyeurism, gender-identity disorders not resulting in
24 physical impairments, other sexual behavior disorders, problem gambling,
25 kleptomania, pyromania, or psychoactive substance use disorders resulting
26 from current illegal use of drugs;
27 (12)(a) (10)(a) Qualified individual with a disability shall mean an
28 individual with a disability who, with or without reasonable
29 accommodation, can perform the essential functions of the employment
30 position that such individual holds or desires. Consideration shall be
31 given to the employer's judgment as to what functions of a job are
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1 essential, and if an employer has prepared a written description before
2 advertising or interviewing applicants for the job, this description
3 shall be considered evidence of the essential functions of the job;
4 (b) Qualified individual with a disability shall not include any
5 employee or applicant who is currently engaged in the illegal use of
6 drugs when the covered entity acts on the basis of such use; and
7 (c) Nothing in this subdivision shall be construed to exclude as a
8 qualified individual with a disability an individual who:
9 (i) Has successfully completed a supervised drug rehabilitation
10 program or otherwise been rehabilitated successfully and is no longer
11 engaging in the illegal use of drugs;
12 (ii) Is participating in a supervised rehabilitation program and is
13 no longer engaging in such use; or
14 (iii) Is erroneously regarded as engaging in such use but is not
15 engaging in such use;
16 (13) (11) Reasonable accommodation, with respect to disability,
17 shall include making existing facilities used by employees readily
18 accessible to and usable by individuals with disabilities, job
19 restructuring, part-time or modified work schedules, reassignment to a
20 vacant position, acquisition or modification of equipment or devices,
21 appropriate adjustment or modification of examinations, training manuals,
22 or policies, the provision of qualified readers or interpreters, and
23 other similar accommodations for individuals with disabilities.
24 Reasonable accommodation, with respect to pregnancy, childbirth, or
25 related medical conditions, shall include acquisition of equipment for
26 sitting, more frequent or longer breaks, periodic rest, assistance with
27 manual labor, job restructuring, light-duty assignments, modified work
28 schedules, temporary transfers to less strenuous or hazardous work, time
29 off to recover from childbirth, or break time and appropriate facilities
30 for breast-feeding or expressing breast milk. Reasonable accommodation
31 shall not include accommodations which the covered entity can demonstrate
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1 require significant difficulty or expense thereby posing an undue
2 hardship upon the covered entity. Factors to be considered in determining
3 whether an accommodation would pose an undue hardship shall include:
4 (a) The nature and the cost of the accommodation needed under the
5 Nebraska Fair Employment Practice Act;
6 (b) The overall financial resources of the facility or facilities
7 involved in the provision of the reasonable accommodation, the number of
8 persons employed at such facility, the effect on expenses and resources,
9 or the impact otherwise of such accommodation upon the operation of the
10 facility;
11 (c) The overall financial resources of the covered entity, the
12 overall size of the business of a covered entity with respect to the
13 number of its employees, and the number, type, and location of its
14 facilities; and
15 (d) The type of operation or operations of the covered entity,
16 including the composition, structure, and functions of the work force of
17 such entity, and the geographic separateness and administrative or fiscal
18 relationship of the facility or facilities in question to the covered
19 entity;
20 (14) (12) Marital status shall mean the status of a person whether
21 married or single;
22 (15) (13) Because of sex or on the basis of sex shall include, but
23 not be limited to, because of or on the basis of pregnancy, childbirth,
24 or related medical conditions;
25 (16) (14) Harass because of sex shall include making unwelcome
26 sexual advances, requesting sexual favors, and engaging in other verbal
27 or physical conduct of a sexual nature if (a) submission to such conduct
28 is made either explicitly or implicitly a term or condition of an
29 individual's employment, (b) submission to or rejection of such conduct
30 by an individual is used as the basis for employment decisions affecting
31 such individual, or (c) such conduct has the purpose or effect of
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1 unreasonably interfering with an individual's work performance or
2 creating an intimidating, hostile, or offensive working environment;
3 (17) (15) Unlawful under federal law or the laws of this state shall
4 mean acting contrary to or in defiance of the law or disobeying or
5 disregarding the law;
6 (18) (16) Drug shall mean a controlled substance as defined in
7 section 28-401;
8 (19) (17) Illegal use of drugs shall mean the use of drugs, the
9 possession or distribution of which is unlawful under the Uniform
10 Controlled Substances Act, but shall not include the use of a drug taken
11 under supervision by a licensed health care professional or any other use
12 authorized by the Uniform Controlled Substances Act or other provisions
13 of state law;
14 (20) (18) Individual who is pregnant, who has given birth, or who
15 has a related medical condition shall mean an individual with a known
16 limitation who, with or without reasonable accommodation, can perform the
17 essential functions of the employment position that such individual
18 holds, desires, or may be temporarily assigned to. Consideration shall be
19 given to the employer's judgment as to what functions of a job are
20 essential, and if an employer has prepared a written description before
21 advertising or interviewing applicants for the job, this description
22 shall be considered evidence of the essential functions of the job;
23 (21) (19) Race is inclusive of characteristics such as skin color,
24 hair texture, and protective hairstyles; and
25 (22) (20) Protective hairstyles includes braids, locks, and
26 twists; .
27 (23) Gender identity shall mean an individual's internal sense of
28 the individual's own gender, regardless of the sex the individual was
29 assigned at birth; and
30 (24) Sexual orientation shall mean actual or perceived
31 homosexuality, heterosexuality, or bisexuality.
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1 Sec. 3. Section 48-1104, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 48-1104 It shall be an unlawful employment practice for an employer:
4 (1) To fail or refuse to hire, to discharge, or to harass any
5 individual, or otherwise to discriminate against any individual with
6 respect to compensation, terms, conditions, or privileges of employment,
7 because of such individual's race, color, religion, sex, disability,
8 marital status, or national origin, sexual orientation, or gender
9 identity; or
10 (2) To limit, advertise, solicit, segregate, or classify employees
11 in any way which would deprive or tend to deprive any individual of
12 employment opportunities or otherwise adversely affect such individual's
13 status as an employee, because of such individual's race, color,
14 religion, sex, disability, marital status, or national origin, sexual
15 orientation, or gender identity.
16 Sec. 4. Section 48-1105, Reissue Revised Statutes of Nebraska, is
17 amended to read:
18 48-1105 It shall be an unlawful employment practice for an
19 employment agency to fail or refuse to refer for employment, or otherwise
20 to discriminate against, any individual because of race, color, religion,
21 sex, disability, marital status, or national origin, sexual orientation,
22 or gender identity, or to classify or refer for employment any individual
23 on the basis of race, color, religion, sex, disability, marital status,
24 or national origin, sexual orientation, or gender identity.