LB678 LB678
2023 2023
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 678
Introduced by Day, 49.
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 48-1102, 48-1111, and 48-1125, Reissue Revised
3 Statutes of Nebraska; to change, provide, eliminate, and transfer
4 definitions and provisions relating to discrimination on the basis
5 of disability or pregnancy; to harmonize provisions; and to repeal
6 the original sections.
7 Be it enacted by the people of the State of Nebraska,
-1-
LB678 LB678
2023 2023
1 Section 1. Section 48-1102, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 48-1102 For purposes of the Nebraska Fair Employment Practice Act,
4 unless the context otherwise requires, the following definitions and the
5 definitions found in sections 2 to 15 of this act apply:
6 (1) Person shall include one or more individuals, labor unions,
7 partnerships, limited liability companies, associations, corporations,
8 legal representatives, mutual companies, joint-stock companies, trusts,
9 unincorporated organizations, trustees, trustees in bankruptcy, or
10 receivers;
11 (2) Employer shall mean a person engaged in an industry who has
12 fifteen or more employees for each working day in each of twenty or more
13 calendar weeks in the current or preceding calendar year, any agent of
14 such a person, and any party whose business is financed in whole or in
15 part under the Nebraska Investment Finance Authority Act regardless of
16 the number of employees and shall include the State of Nebraska,
17 governmental agencies, and political subdivisions, but such term shall
18 not include (a) the United States, a corporation wholly owned by the
19 government of the United States, or an Indian tribe or (b) a bona fide
20 private membership club, other than a labor organization, which is exempt
21 from taxation under section 501(c) of the Internal Revenue Code;
22 (3) Labor organization shall mean any organization which exists
23 wholly or in part for one or more of the following purposes: Collective
24 bargaining; dealing with employers concerning grievances, terms, or
25 conditions of employment; or mutual aid or protection in relation to
26 employment;
27 (4) Employment agency shall mean any person regularly undertaking
28 with or without compensation to procure employees for an employer or to
29 procure for employees opportunities to work for an employer and shall
30 include an agent of such a person but shall not include an agency of the
31 United States, except that such term shall include the United States
-2-
LB678 LB678
2023 2023
1 Employment Service and the system of state and local employment services
2 receiving federal assistance;
3 (5) Covered entity shall mean an employer, an employment agency, a
4 labor organization, or a joint labor-management committee;
5 (6) Privileges of employment shall mean terms and conditions of any
6 employer-employee relationship, opportunities for advancement of
7 employees, and plant conveniences;
8 (7) Employee shall mean an individual employed by an employer;
9 (8) Commission shall mean the Equal Opportunity Commission;
10 (9) Disability shall mean (a) a physical or mental impairment that
11 substantially limits one or more of the major life activities of such
12 individual, (b) a record of such an impairment, or (c) being regarded as
13 having such an impairment. Disability shall not include homosexuality,
14 bisexuality, transvestism, transsexualism, pedophilia, exhibitionism,
15 voyeurism, gender-identity disorders not resulting in physical
16 impairments, other sexual behavior disorders, problem gambling,
17 kleptomania, pyromania, or psychoactive substance use disorders resulting
18 from current illegal use of drugs;
19 (10)(a) Qualified individual with a disability shall mean an
20 individual with a disability who, with or without reasonable
21 accommodation, can perform the essential functions of the employment
22 position that such individual holds or desires. Consideration shall be
23 given to the employer's judgment as to what functions of a job are
24 essential, and if an employer has prepared a written description before
25 advertising or interviewing applicants for the job, this description
26 shall be considered evidence of the essential functions of the job;
27 (b) Qualified individual with a disability shall not include any
28 employee or applicant who is currently engaged in the illegal use of
29 drugs when the covered entity acts on the basis of such use; and
30 (c) Nothing in this subdivision shall be construed to exclude as a
31 qualified individual with a disability an individual who:
-3-
LB678 LB678
2023 2023
1 (i) Has successfully completed a supervised drug rehabilitation
2 program or otherwise been rehabilitated successfully and is no longer
3 engaging in the illegal use of drugs;
4 (ii) Is participating in a supervised rehabilitation program and is
5 no longer engaging in such use; or
6 (iii) Is erroneously regarded as engaging in such use but is not
7 engaging in such use;
8 (11) Reasonable accommodation, with respect to disability, shall
9 include making existing facilities used by employees readily accessible
10 to and usable by individuals with disabilities, job restructuring, part-
11 time or modified work schedules, reassignment to a vacant position,
12 acquisition or modification of equipment or devices, appropriate
13 adjustment or modification of examinations, training manuals, or
14 policies, the provision of qualified readers or interpreters, and other
15 similar accommodations for individuals with disabilities. Reasonable
16 accommodation, with respect to pregnancy, childbirth, or related medical
17 conditions, shall include acquisition of equipment for sitting, more
18 frequent or longer breaks, periodic rest, assistance with manual labor,
19 job restructuring, light-duty assignments, modified work schedules,
20 temporary transfers to less strenuous or hazardous work, time off to
21 recover from childbirth, or break time and appropriate facilities for
22 breast-feeding or expressing breast milk. Reasonable accommodation shall
23 not include accommodations which the covered entity can demonstrate
24 require significant difficulty or expense thereby posing an undue
25 hardship upon the covered entity. Factors to be considered in determining
26 whether an accommodation would pose an undue hardship shall include:
27 (a) The nature and the cost of the accommodation needed under the
28 Nebraska Fair Employment Practice Act;
29 (b) The overall financial resources of the facility or facilities
30 involved in the provision of the reasonable accommodation, the number of
31 persons employed at such facility, the effect on expenses and resources,
-4-
LB678 LB678
2023 2023
1 or the impact otherwise of such accommodation upon the operation of the
2 facility;
3 (c) The overall financial resources of the covered entity, the
4 overall size of the business of a covered entity with respect to the
5 number of its employees, and the number, type, and location of its
6 facilities; and
7 (d) The type of operation or operations of the covered entity,
8 including the composition, structure, and functions of the work force of
9 such entity, and the geographic separateness and administrative or fiscal
10 relationship of the facility or facilities in question to the covered
11 entity;
12 (9) (12) Marital status shall mean the status of a person whether
13 married or single;
14 (10) (13) Because of sex or on the basis of sex shall include, but
15 not be limited to, because of or on the basis of pregnancy, childbirth,
16 or related medical conditions;
17 (11) (14) Harass because of sex shall include making unwelcome
18 sexual advances, requesting sexual favors, and engaging in other verbal
19 or physical conduct of a sexual nature if (a) submission to such conduct
20 is made either explicitly or implicitly a term or condition of an
21 individual's employment, (b) submission to or rejection of such conduct
22 by an individual is used as the basis for employment decisions affecting
23 such individual, or (c) such conduct has the purpose or effect of
24 unreasonably interfering with an individual's work performance or
25 creating an intimidating, hostile, or offensive working environment;
26 (12) (15) Unlawful under federal law or the laws of this state shall
27 mean acting contrary to or in defiance of the law or disobeying or
28 disregarding the law;
29 (13) (16) Drug shall mean a controlled substance as defined in
30 section 28-401;
31 (14) (17) Illegal use of drugs shall mean the use of drugs, the
-5-
LB678 LB678
2023 2023
1 possession or distribution of which is unlawful under the Uniform
2 Controlled Substances Act, but shall not include the use of a drug taken
3 under supervision by a licensed health care professional or any other use
4 authorized by the Uniform Controlled Substances Act or other provisions
5 of state law;
6 (18) Individual who is pregnant, who has given birth, or who has a
7 related medical condition shall mean an individual with a known
8 limitation who, with or without reasonable accommodation, can perform the
9 essential functions of the employment position that such individual
10 holds, desires, or may be temporarily assigned to. Consideration shall be
11 given to the employer's judgment as to what functions of a job are
12 essential, and if an employer has prepared a written description before
13 advertising or interviewing applicants for the job, this description
14 shall be considered evidence of the essential functions of the job;
15 (15) (19) Race is inclusive of characteristics such as skin color,
16 hair texture, and protective hairstyles; and
17 (16) (20) Protective hairstyles includes braids, locks, and twists.
18 Sec. 2. (1) Disability means, with respect to an individual:
19 (a) A physical or mental impairment that substantially limits one or
20 more of the major life activities of such individual;
21 (b) A record of such an impairment; or
22 (c) Being regarded as having such an impairment. This means that the
23 individual has been subjected to an action prohibited by the Nebraska
24 Fair Employment Practice Act because of:
25 (i) An actual or perceived impairment that is not both transitory
26 and minor as provided in section 17 of this act; or
27 (ii) The known disability of another person with whom the individual
28 is known to have a relationship or association.
29 (2) An individual may establish disability under any one or more of
30 the three prongs of the definition of disability in subsection (1) of
31 this section: Subdivision (1)(a), the "actual disability" prong;
-6-
LB678 LB678
2023 2023
1 subdivision (1)(b), the "record of" prong; or subdivision (1)(c), the
2 "regarded as" prong.
3 (3) When an individual is not challenging a covered entity's failure
4 to make reasonable accommodations and does not require a reasonable
5 accommodation, it is generally unnecessary to proceed under the "actual
6 disability" or "record of" prongs, which require a showing of an
7 impairment that substantially limits a major life activity or a record of
8 such an impairment. In these cases, the evaluation of coverage can be
9 made solely under the "regarded as" prong of the definition of
10 disability, which does not require a showing of an impairment that
11 substantially limits a major life activity or a record of such an
12 impairment. An individual may choose, however, to proceed under the
13 "actual disability" or "record of" prong regardless of whether the
14 individual is challenging a covered entity's failure to make reasonable
15 accommodations or requires a reasonable accommodation.
16 (4)(a) The terms disability and qualified individual with a
17 disability do not include individuals currently engaging in the illegal
18 use of drugs, when the covered entity acts on the basis of such use.
19 (b) However, the terms disability and qualified individual with a
20 disability may not exclude an individual who:
21 (i) Has successfully completed a supervised drug rehabilitation
22 program and is no longer engaging in the illegal use of drugs, or has
23 otherwise been rehabilitated successfully and is no longer engaging in
24 the illegal use of drugs; or
25 (ii) Is participating in a supervised rehabilitation program and is
26 no longer engaging in such use; or
27 (iii) Is erroneously regarded as engaging in such use, but is not
28 engaging in such use.
29 (5) Disability does not include:
30 (a) Transvestism, transsexualism, pedophilia, exhibitionism,
31 voyeurism, gender identity disorders not resulting from physical
-7-
LB678 LB678
2023 2023
1 impairments, or other sexual behavior disorders;
2 (b) Compulsive gambling, kleptomania, or pyromania; or
3 (c) Psychoactive substance use disorders resulting from current
4 illegal use of drugs.
5 (6) Homosexuality and bisexuality are not impairments and so are not
6 disabilities.
7 Sec. 3. Physical or mental impairment means:
8 (1) Any physiological disorder or condition, cosmetic disfigurement,
9 or anatomical loss affecting one or more body systems, such as
10 neurological, musculoskeletal, special sense organs, respiratory
11 (including speech organs), cardiovascular, reproductive, digestive,
12 genitourinary, immune, circulatory, hemic, lymphatic, skin, and
13 endocrine; or
14 (2) Any mental or psychological disorder, such as an intellectual
15 disability (formerly termed "mental retardation"), organic brain
16 syndrome, emotional or mental illness, and specific learning
17 disabilities.
18 Sec. 4. (1) Major life activities include, but are not limited to:
19 (a) Caring for oneself, performing manual tasks, seeing, hearing,
20 eating, sleeping, walking, standing, sitting, reaching, lifting, bending,
21 speaking, breathing, learning, reading, concentrating, thinking,
22 communicating, interacting with others, and working; and
23 (b) The operation of a major bodily function, including functions of
24 the immune system, special sense organs and skin; normal cell growth; and
25 digestive, genitourinary, bowel, bladder, neurological, brain,
26 respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic,
27 musculoskele