41-1463

41-1463. 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 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, 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
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, 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. 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 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. As used in 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. 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 measures earnings by quantity or quality of production or to employees
who work in different locations, provided that 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 the results of any professionally developed
ability test provided that the test, its administration or action upon 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 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. 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. 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 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. 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 equals, in the aggregate, at least forty-four thousand dollars. 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. 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. 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. 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.