HB 196 — PREGNANT WORKER ACCOMMODATION ACT

N.

"major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;

e e 17 O.

"applicant for employment" means a person e e n d 18 applying for a position as an employee;

= = l ] 19 P.

"sexual orientation" means heterosexuality, a l r i 20 homosexuality or bisexuality, whether actual or perceived;

t e a t [and] m m 21 e d Q.

"gender identity" means a person's r e 22 c e r c 23 self-perception, or perception of that person by another, of e a n b 24 the person's identity as a male or female based upon the u [ person's appearance, behavior or physical characteristics that .214371.4 - 3 - HFl/HB 196 are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth;

R.

"reasonable accommodation" means modification or adaptation of the work environment, work schedule, work rules or job responsibilities for as long as necessary, and reached through good faith efforts to explore less restrictive or less expensive alternatives, to enable an employee to perform the essential functions of the job and that does not impose an undue hardship on the employer;

and S.

"undue hardship" means an accommodation requiring significant difficulty or expense when considered in light of the following factors:

(1) the nature and cost of the accommodation;

(2) the financial resources of the employer involved in the provision of the reasonable accommodation;

(3) the number of persons the employer e e 17 employs;

e e n d 18 (4) the effect of the accommodation on = = l ] 19 expenses and resources;

a l r i 20 (5) the impact of the accommodation otherwise t e a t upon the employer's business;

m m 21 e d (6) the overall financial resources of the r e 22 c e r c 23 employer;

e a n b 24 (7) the overall size of the business of an u [ employer with respect to the number, type and location of its .214371.4 - 4 - HFl/HB 196 facilities;

(8) the type of operation of the employer, including the composition, structure and functions of the workforce of the employer;

or (9) the geographic separateness or administrative or fiscal relationship to the employer of the employer's facilities." SECTION 2.

Section 28-1-7 NMSA 1978 (being Laws 1969, Chapter 196, Section 7, as amended) is amended to read:

"28-1-7.

UNLAWFUL DISCRIMINATORY PRACTICE.--It is an unlawful discriminatory practice for:

an"employer" employer,means unless based on a bonaperson fide occupational qualification or otherentity, statutoryincluding prohibition,a topartnership, refuseassociation, tocorporation, hire,business totrust, discharge,unassociated togroup promote or demoteagency oremploying tofour discriminateor inmore mattersemployees, of compensation, terms, conditions or privilegesa of employment against any person otherwiseor qualifiedentity eacting eon 17behalf because of race, age, religion, color, national origin, e e n d 18 ancestry, sex, pregnancy, childbirth or conditionas relatedan toagent =of =an lemployer; ] 19 pregnancy or childbirth, physical or mental handicap or serious a l r i 20 medical condition, or, if the employer has fifty or more t e a t employees, spousal affiliation;

provided,B. however, that 29 m m 21 e d U.S.C.

Section"reasonable 631(c)(1)accommodation" andmeans (2)a shallmodification applyor adaptation of the work environment, work rules or job responsibilities for as long as necessary upon an employee's h g request to discriminationenable rthe eemployee 22with ca need arising from o t hr pregnancy or childbirth or a related condition to perform the g e ri ck 23job basedthat does not impose an undue hardship on age;the employee's h r i s h employer;

or,and if, thet, employer has fifteen or more e a n b 24 employees, to discriminate against an employee based upon the u [g employee'sC. sexual orientation or gender identity;

.214371.4"undue -hardship" 5means -an HFl/HBemployment 196e B.b l e e h accommodation requiring significant difficulty or expense when n d d i = = o h considered in light of the following factors:

al labor] organizationb to,d excludei a personº ore tor expeli or= otherwiser discriminate(1) againstthe anynature ofand itscost members or against any employer or employee because of race,the religion,accommodation; color, national origin, ancestry, sex, sexual orientation, gender identity, pregnancy, childbirth or condition related to pregnancy or childbirth, spousal affiliation, physical or mental handicap or serious medical condition;

t e w d m a n o (2) the financial resources of the employer d m :

b e d s º o t n = .212185.1 s k m e e a n e d r e l u [ A d involved in the provision of the reasonable accommodation;

(3) the number of persons the employer employs;

(4) the effect of the accommodation on expenses and resources;

(5) the impact of the accommodation otherwise upon the employer's business;

(6) the overall financial resources of the employer;

(7) the overall size of the business of an employer with respect to the number, type and location of its facilities;

(8) the type of operation of the employer, including the composition, structure and functions of the workforce of the employer;

or (9) the geographic separateness or h administrative or fiscal relationship to the employer of the g o t hr employer's facilities." g e i k SECTION 3.

A new section of Chapter 28 NMSA 1978 is h r i s enacted to read:

h , t, "[NEW MATERIAL] EMPLOYMENT DISCRIMINATION--PROHIBITION.-- e u g e b l e e h A.

It is an unlawful discriminatory practice for an n d d i = = o h employer to:

l ] b ,d i a º e (1) refuse a request for reasonable r i = r t e w d m a n o accommodation or fail to make reasonable accommodation for an d m :

b e d s º o t n = .212185.1 s k m e - 3 - e a n e d r e l u [ A d employee or job applicant with a need arising from pregnancy or childbirth or a related condition, unless the employer demonstrates that the accommodation constitutes an undue hardship;

(2) refuse to hire, discharge, refuse to promote, demote or discriminate in matters of compensation or leave or terms, conditions or privileges of employment against any person otherwise qualified for employment on the basis of a need arising from that person's pregnancy or childbirth or a related condition, including receipt of benefits under fringe benefit programs, unless based on a bona fide occupational qualification;

(3) print or circulate or cause to be printed or circulated any statement, advertisement or publication;

use any form of application for employment;

or make any inquiry regarding prospective employment that expresses, directly or h indirectly, any limitation, specification or discrimination as u » r to a need arising from a person's pregnancy or childbirth or a t h g e l i related condition, unless based on a bona fide occupational h r i s qualification;

and h , e h (4) require an employee to take paid or unpaid t u g e b l e e , gh leave if another reasonable accommodation can be provided to n d d i = = o h the employee with a need arising from pregnancy or childbirth l ] b ,d i a º r or a related condition.

e r = t e w d m a n o B.

It is an unlawful discriminatory practice for an d m :

b r e t º o t n = .212185.1 s k m e - 4 - e a n e d r e l u [ A d employer to refuse to list, properly classify for employment or refer a person for employment in a known available job for which the person is otherwise qualified on the basis of a need arising from the person's pregnancy or childbirth or a related condition, unless the employer's action is based on a bona fide occupational qualification.

anyIt employer,is laboran organizationunlawful ordiscriminatory jointpractice apprenticeshipfor committeean toemployer's refuseagent to admitcomply orwith employa anyrequest personfrom inan anyemployer programfor establishedreferral toof provideapplicants anfor apprenticeshipemployment orif otherthe trainingrequest orindicates, retrainingdirectly becauseor ofindirectly, race,that religion,the color,employer nationaldiscriminates origin,in ancestry,employment sex,on sexualthe orientation,basis genderof identity,a pregnancy,need childbirtharising orfrom conditionthe relatedperson's to pregnancy or childbirth,childbirth physical or mentala handicaprelated or serious medical condition, or,unless ifthat thediscrimination employeris hasbased fiftyon ora morebona employees,fide spousaloccupational affiliation;qualification.

e e 17 D.

anyAn person,employer employer,shall employmentkeep agencyconfidential oran laboremployee's erequest efor nan daccommodation 18pursuant organization to printthe orh circulatePregnant orWorker causeAccommodation toAct, beincluding printedthe oremployee's =u =» l ] 19 circulated any statement, advertisement or publication, to use a l r ineed 20arising anyfrom formpregnancy of application for employment or membershipchildbirth or toa makerelated t eh ag t any inquiry regarding prospective membership or employment that m m 21 e dl expresses,i directlycondition, orand indirectly,all anyaccommodations limitation,granted rpursuant eto 22that ch e r ci 23s specificationact." orh discrimination, as to race, color, religion, e ah nSECTION b4. 24 national origin, ancestry, sex, sexual orientation, gender u [ identity, pregnancy, childbirth or condition related to .214371.4 - 6 - HFl/HB 196 pregnancy or childbirth , physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation, unless based on a bona fide occupational qualification;

E.A new section of Chapter 28 NMSA 1978 is t u g e b l e e , gh enacted to read:

an employment agency to refuse to list and properly classify for employment or refer a person for employment in a known available job, for which the person is otherwise qualified, because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, pregnancy, childbirth or condition related to pregnancy or childbirth, spousal affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification, or to comply with a request from an employer for referral of applicants for employment if the request indicates, either directly or indirectly, that the employer discriminates in employment on the basis of race, e e 17 religion, color, national origin, ancestry, sex, sexual e e n d 18d orientation,i gender identity, pregnancy, childbirth or = = lo ]h 19"[NEW conditionMATERIAL related] toPREGNANCY pregnancyACCOMMODATION orNOTICE.-- childbirth,l spousal] ab l,d r i 20 affiliation, physical or mental handicap or serious medical t e a tº condition,r unlessA. based on a bona fide occupational m m 21 e d qualification;

rAn eemployer 22shall cprovide written notice of an e r c= 23t F.e w d m a n o employee's rights pursuant to the Pregnant Worker Accommodation d m :

anyb personr ine anyt publicº accommodationo tot maken a= e.212185.1 as nk bm 24e distinction,- directly5 or- indirectly,e ina offeringn ore refusingd tor e l u [ offerA itsd services,Act facilities, accommodations or goods to anybe .214371.4free -from 7discrimination -related HFl/HBto 196pregnancy personor becausechildbirth ofor race,a religion,related color,condition, nationalincluding origin,the ancestry,right sex,to sexualreasonable orientation,accommodation genderfor identity,a pregnancy,need childbirtharising orfrom condition related to pregnancy or childbirth,childbirth spousal affiliation or physicala orrelated mentalcondition, handicap;to:

provided(1) thatjob theapplicants; physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

G.(2) new employees at the commencement of employment;

any(3) personexisting to:employees within one hundred twenty days after the effective date of the Pregnant Worker Accommodation Act;

(1)and refuse(4) towithin sell,ten rent,days assign,of leasean oremployee subleasegiving oran offeremployer fornotice sale, rental, lease, assignment or sublease any housing accommodation or real property to any person or to refuse to negotiate for the sale, rental, lease, assignment or sublease of anypregnancy housing accommodation or real property to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, pregnancy, childbirth or conditiona related tocondition. e e 17 pregnancy or childbirth, spousal affiliation or physical or e e n d 18 mental handicap;

providedB. that the physical or mental handicap = = l ] 19 is unrelated to a person's ability to acquire or rent and a l r i 20 maintain particular real property or housing accommodation;

tThe enotice aprovided tpursuant (2)to discriminatethis againstsection anyshall personalso inbe theconspicuously mposted mat 21an eemployer's dplace terms, conditions or privileges of thebusiness sale, rental, r e 22 c e r c 23 assignment, lease or sublease of any housing accommodation or e a n b 24 real property or in thean provisionarea ofaccessible facilities or services in u [ connection therewith because of race, religion, color, national .214371.4 - 8 - HFl/HB 196 origin, ancestry, sex, sexual orientation, gender identity, pregnancy, childbirth or condition related to pregnancyemployees." orh childbirth,SECTION spousal5. affiliation or physical or mental handicap;

providedA thatnew thesection physicalof orChapter mental28 handicapNMSA 1978 is unrelatedu to» ar person'senacted ability to acquireread: or rent and maintain particular real property or housing accommodation;

ort (3)h print,g circulate,e displayl ori mail"[NEW orMATERIAL cause] toRETALIATION bePROHIBITED.--It printed,is circulated,a displayedviolation orh mailedr anyi statement,s advertisement,of publicationthe orPregnant signWorker orAccommodation useAct anyfor forman ofemployer applicationor forany theh purchase,, rental,e lease,h assignmentother orperson subleaseto ofrefuse anyto housinghire, accommodationdischarge, orrefuse realto propertypromote, ort tou makeg anye recordb orl inquirye regardinge the, prospectivegh purchase,demote rental,or lease,discriminate assignmentagainst ora subleaseperson in matters of anyn housingd accommodationd ori real= property= thato expressesh anycompensation preference,or limitationleave or discriminationterms, asconditions toor race,privileges religion,of color,l national] origin,b ancestry,,d sex,i sexuala orientation,º genderr eemployment ein 17retaliation identity,for pregnancy,the childbirthperson orhaving conditiona relatedneed toarising e r = t e nw d 18m pregnancya orn childbirth,o spousalfrom affiliationpregnancy, orchildbirth physical or =a =related lcondition, ]for 19d mentalm handicap;:

providedb thatr thee physicalt orº mentalo handicapt n = .212185.1 s k m e - 6 - e a ln e d r ie 20l isu unrelated[ toA d asserting a person'sclaim abilityor right pursuant to acquirethe orPregnant rentWorker andAccommodation tAct, efor assisting another person to assert a tclaim maintainor particularright realpursuant propertyto the Pregnant Worker Accommodation Act or housingfor accommodation;informing another person about employment rights or other rights provided by law." SECTION 6.

mA mnew 21section eof dChapter H.28 NMSA 1978 is enacted to read:

any"[NEW personMATERIAL to] whomGRIEVANCE applicationPROCEDURE.-- isA. made either r e 22 c e r c 23 for financial assistance for the acquisition, construction, e a n b 24 rehabilitation, repair or maintenance of any housing u [ accommodation or real property or for any type of consumer .214371.4 - 9 - HFl/HB 196 credit, including financial assistance for the acquisition of any consumer good as defined by Section 55-9-102 NMSA 1978, to:

(1)A considerperson theclaiming race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, pregnancy, childbirth or condition related to pregnancybe oraggrieved childbirth,by spousalan affiliationunlawful ordiscriminatory physicalpractice orin mentalviolation handicap of any individual in the granting,Pregnant withholding,Worker extending,Accommodation modifyingAct orHJCº renewingmay orshall»HJC inseek therelief fixingunder of the rates,Human terms,Rights conditionsAct orpursuant provisionsto of any financial assistance or in the extensionprocess ofset servicesout in connectionSections with28-1-10 thethrough request28-1-13 forNMSA financial1978. assistance;

orB. (2) use any form of application for financial assistance or to make any record or inquiry in connection with applications for financial assistance that expresses, directly or indirectly, any limitation, specification or discrimination as to race, religion, color, national origin, ancestry, sex, e e 17 sexual orientation, gender identity, pregnancy, childbirth or e e n d 18 condition related to pregnancy or childbirth, spousal = = l ] 19 affiliation or physical or mental handicap;

aIn laddition rto iany 20judgment I.awarded to the plaintiff of actual damages and reasonable attorney fees, a court may order:

anyh person(1) orin employerits to:discretion, treble damages;

g o t hr (2) appropriate injunctive relief, including g e i k requiring an employer to post in the place of business a tnotice (1)h aid,r abet,i incite,s compeldescribing orviolations coerceby the memployer, mas 21determined eby dthe doingh of, anyt, unlawfulcourt discriminatoryor practicea orcopy toof attempta cease and desist order applicable to rthe e 22u cg e rb cl 23e doe so;h employer;

e a n bd 24d (2)i engage= in= anyo formh of(3) threats,appropriate reprisalequitable orrelief, uincluding [l discrimination] againstb any,d personi whoa hasº opposede anyemployment unlawfulreinstatement .214371.4 - 10 - HFl/HB 196 discriminatory practice or haspromotion; filed a complaint, testified or participated in any proceeding under the Human Rights Act;

or (3)r willfullyi obstruct= orr preventt anye personw fromd complyingm witha then provisionso of(4) thein Humanits Rightsdiscretion, Actpunitive ordamages to resist,an prevent,d impedem or: interfere with the commission or any of its members, staff or representatives in the performance of their duties under the Human Rights Act;

[orb ]e J.d s º o t n = .212185.1 s k m e - 7 - e a n e d r e l u [ A d employee or job applicant." SECTION 7.

anyA employernew tosection refuseof orChapter fail28 toNMSA accommodate1978 a person's physical or mental handicap or serious medical condition, unless such accommodation is unreasonableenacted orto anread: undue hardship;

K."[NEW MATERIAL ] HUMAN RIGHTS ACT--APPLICABILITY.--Nothing in the Pregnant Worker Accommodation Act shall be construed to invalidate or limit the remedies, rights and procedures of the Human Rights Act or the law of any jurisdiction that provides greater or equal protection for workers with a need arising from pregnancy or childbirth or a related condition.

anyA employerperson toshall refusenot orconstrue failthe Pregnant Worker Accommodation Act to makecreate reasonablea accommodationnegative forinference anas employeeto orthe jobapplicability applicantof withthe aHuman needRights arisingAct fromto pregnancy,discrimination based on pregnancy or childbirth or a related condition,condition." unless- such8 accommodation- ish unreasonableu or» anr unduet hardship;h g e l i h r i s h , e h t u g e b l e e , gh n d d i = = o h l ] b ,d i a º r e r = t e w d m a n o d m :

orb r e t º o t n = .212185.1 s k m e 17e L.a n e d r e l u [ A d

an employer to require an employee with a need e e n d 18 arising from pregnancy, childbirth or related condition to take = = l ] 19 paid or unpaid leave if another reasonable accommodation can be a l r i 20 provided unless the employee voluntarily requests to be placed t e a t on leave or the employee is placed on leave pursuant to federal m m 21 e d law." r e 22 c e r c 23 - 11 - e a n b 24 u [ .214371.4