State Codes and Statutes
Statutes > Utah > Title-34a > Chapter-05 > 34a-5-10734A-5-107. Procedure for aggrieved person to file claim -- Investigations --Adjudicative proceedings -- Settlement -- Reconsideration -- Determination.
(1) (a) Any person claiming to be aggrieved by a discriminatory or prohibitedemployment practice may, or that person's attorney or agent may, make, sign, and file with thedivision a request for agency action.
(b) Every request for agency action shall be verified under oath or affirmation.
(c) A request for agency action made under this section shall be filed within 180 daysafter the alleged discriminatory or prohibited employment practice occurred.
(d) The division may transfer a request for agency action filed with the division pursuantto this section to the federal Equal Employment Opportunity Commission in accordance with theprovisions of any work-share agreement that is:
(i) between the division and the Equal Employment Opportunity Commission; and
(ii) in effect on the day on which the request for agency action is transferred.
(2) Any employer, labor organization, joint apprenticeship committee, or vocationalschool who has an employee or member who refuses or threatens to refuse to comply with thischapter may file with the division a request for agency action asking the division for assistance toobtain the employee's or member's compliance by conciliation or other remedial action.
(3) (a) Before a hearing is set or held as part of any adjudicative proceeding, the divisionshall promptly assign an investigator to attempt a settlement between the parties by conference,conciliation, or persuasion.
(b) If no settlement is reached, the investigator shall make a prompt impartialinvestigation of all allegations made in the request for agency action.
(c) The division and its staff, agents, and employees:
(i) shall conduct every investigation in fairness to all parties and agencies involved; and
(ii) may not attempt a settlement between the parties if it is clear that no discriminatoryor prohibited employment practice has occurred.
(d) An aggrieved party may withdraw the request for agency action prior to the issuanceof a final order.
(4) (a) If the initial attempts at settlement are unsuccessful, and the investigator uncoversinsufficient evidence during the investigation to support the allegations of a discriminatory orprohibited employment practice set out in the request for agency action, the investigator shallformally report these findings to the director or the director's designee.
(b) Upon receipt of the investigator's report described in Subsection (4)(a), the director orthe director's designee may issue a determination and order for dismissal of the adjudicativeproceeding.
(c) A party may make a written request to the Division of Adjudication for an evidentiaryhearing to review de novo the director's or the director's designee's determination and orderwithin 30 days of the date the determination and order for dismissal is issued.
(d) If the director or the director's designee receives no timely request for a hearing, thedetermination and order issued by the director or the director's designee becomes the final orderof the commission.
(5) (a) If the initial attempts at settlement are unsuccessful and the investigator uncoverssufficient evidence during the investigation to support the allegations of a discriminatory orprohibited employment practice set out in the request for agency action, the investigator shallformally report these findings to the director or the director's designee.
(b) (i) Upon receipt of the investigator's report described in Subsection (5)(a), thedirector or the director's designee may issue a determination and order based on the investigator'sreport.
(ii) A determination and order issued under this Subsection (5)(b) shall:
(A) direct the respondent to cease any discriminatory or prohibited employment practice;and
(B) provide relief to the aggrieved party as the director or the director's designeedetermines is appropriate.
(c) A party may file a written request to the Division of Adjudication for an evidentiaryhearing to review de novo the director's or the director's designee's determination and orderwithin 30 days of the date the determination and order is issued.
(d) If the director or the director's designee receives no timely request for a hearing, thedetermination and order issued by the director or the director's designee in accordance withSubsection (5)(b) becomes the final order of the commission.
(6) In any adjudicative proceeding to review the director's or the director's designee'sdetermination that a prohibited employment practice has occurred, the division shall present thefactual and legal basis of the determination or order issued under Subsection (5).
(7) (a) Prior to commencement of an evidentiary hearing:
(i) the party filing the request for agency action may reasonably and fairly amend anyallegation; and
(ii) the respondent may amend its answer.
(b) An amendment permitted under this Subsection (7) may be made:
(i) during or after a hearing; and
(ii) only with permission of the presiding officer.
(8) (a) If, upon all the evidence at a hearing, the presiding officer finds that a respondenthas not engaged in a discriminatory or prohibited employment practice, the presiding officer shallissue an order dismissing the request for agency action containing the allegation of adiscriminatory or prohibited employment practice.
(b) The presiding officer may order that the respondent be reimbursed by thecomplaining party for the respondent's attorneys' fees and costs.
(9) If upon all the evidence at the hearing, the presiding officer finds that a respondenthas engaged in a discriminatory or prohibited employment practice, the presiding officer shallissue an order requiring the respondent to:
(a) cease any discriminatory or prohibited employment practice; and
(b) provide relief to the complaining party, including:
(i) reinstatement;
(ii) back pay and benefits;
(iii) attorneys' fees; and
(iv) costs.
(10) Conciliation between the parties is to be urged and facilitated at all stages of theadjudicative process.
(11) (a) Either party may file with the Division of Adjudication a written request forreview before the commissioner or Appeals Board of the order issued by the presiding officer inaccordance with:
(i) Section 63G-4-301; and
(ii) Chapter 1, Part 3, Adjudicative Proceedings.
(b) If there is no timely request for review, the order issued by the presiding officerbecomes the final order of the commission.
(12) An order of the commission under Subsection (11)(a) is subject to judicial review asprovided in:
(a) Section 63G-4-403; and
(b) Chapter 1, Part 3, Adjudicative Proceedings.
(13) The commission shall have authority to make rules concerning procedures underthis chapter in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(14) The commission and its staff may not divulge or make public any informationgained from any investigation, settlement negotiation, or proceeding before the commissionexcept as provided in Subsections (14)(a) through (d).
(a) Information used by the director or the director's designee in making anydetermination may be provided to all interested parties for the purpose of preparation for andparticipation in proceedings before the commission.
(b) General statistical information may be disclosed provided the identities of theindividuals or parties are not disclosed.
(c) Information may be disclosed for inspection by the attorney general or other legalrepresentatives of the state or the commission.
(d) Information may be disclosed for information and reporting requirements of thefederal government.
(15) The procedures contained in this section are the exclusive remedy under state lawfor employment discrimination based upon:
(a) race;
(b) color;
(c) sex;
(d) retaliation;
(e) pregnancy, childbirth, or pregnancy-related conditions;
(f) age;
(g) religion;
(h) national origin; or
(i) disability.
(16) (a) The commencement of an action under federal law for relief based upon any actprohibited by this chapter bars the commencement or continuation of any adjudicativeproceeding before the commission in connection with the same claims under this chapter.
(b) The transfer of a request for agency action to the Equal Employment OpportunityCommission in accordance with Subsection (1)(d) is considered the commencement of an actionunder federal law for purposes of Subsection (16)(a).
(c) Nothing in this Subsection (16) is intended to alter, amend, modify, or impair theexclusive remedy provision set forth in Subsection (15).
Amended by Chapter 382, 2008 General Session
