Substitute Senate Bill No. 1053

Public Act No. 01-28

AN ACT CONCERNING THE DEFINITION OF MENTAL DISABILITY AND THE CODE OF FAIR PRACTICES.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 46a-51 of the general statutes is repealed and the following is substituted in lieu thereof:

As used in section 4a-60a and this chapter:

(1) "Blind" refers to an individual whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses, or whose visual acuity is greater than 20/200 but is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than twenty degrees;

(2) "Commission" means the Commission on Human Rights and Opportunities created by section 46a-52;

(3) "Commission counsel" means the counsel employed by the commission pursuant to section 46a-54;

(4) "Commissioner" means a member of the commission;

(5) "Court" means the Superior Court or any judge of said court;

(6) "Discrimination" includes segregation and separation;

(7) "Discriminatory employment practice" means any discriminatory practice specified in section 46a-60 or 46a-81c;

(8) "Discriminatory practice" means a violation of section 4a-60, 4a-60a, 46a-58, 46a-59, 46a-60, 46a-64, 46a-64c, 46a-66, 46a-68, sections 46a-70 to 46a-78, inclusive, subsection (a) of section 46a-80, or sections 46a-81b to 46a-81o, inclusive;

(9) "Employee" means any person employed by an employer but shall not include any individual employed by [his] such individual's parents, spouse or child, or in the domestic service of any person;

(10) "Employer" includes the state and all political subdivisions thereof and means any person or employer with three or more persons in [his] such person's or employer's employ;

(11) "Employment agency" means any person undertaking with or without compensation to procure employees or opportunities to work;

(12) "Labor organization" means any organization which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection in connection with employment;

(13) "Mental retardation" means mental retardation as defined in section 1-1g;

(14) "Person" means one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, receivers and the state and all political subdivisions and agencies thereof;

(15) "Physically disabled" refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device;

(16) "Respondent" means any person alleged in a complaint filed pursuant to section 46a-82 to have committed a discriminatory practice;

(17) "Discrimination on the basis of sex" includes but is not limited to discrimination related to pregnancy, child-bearing capacity, sterilization, fertility or related medical conditions;

(18) "Discrimination on the basis of religious creed" includes but is not limited to discrimination related to all aspects of religious observances and practice as well as belief, unless an employer demonstrates that [he] the employer is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business;

(19) "Learning disability" refers to an individual who exhibits a severe discrepancy between educational performance and measured intellectual ability and who exhibits a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in a diminished ability to listen, speak, read, write, spell or to do mathematical calculations;

(20) "Mental disability" refers to an individual who has a record of, or is regarded as having one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders".

Sec. 2. Section 46a-70 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) State officials and supervisory personnel shall recruit, appoint, assign, train, evaluate and promote state personnel on the basis of merit and qualifications, without regard for race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including but not limited to, blindness, unless it is shown by such state officials or supervisory personnel that such disability prevents performance of the work involved.

(b) All state agencies shall promulgate written directives to carry out this policy and to guarantee equal employment opportunities at all levels of state government. They shall regularly review their personnel practices to assure compliance.

(c) All state agencies shall conduct continuing orientation and training programs with emphasis on human relations and nondiscriminatory employment practices.

(d) The Commissioner of Administrative Services shall insure that the entire examination process, including qualifications appraisal, is free from bias.

(e) Appointing authorities shall exercise care to insure utilization of minority group persons.

Sec. 3. Section 46a-71 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) All services of every state agency shall be performed without discrimination based upon race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness.

(b) No state facility may be used in the furtherance of any discrimination, nor may any state agency become a party to any agreement, arrangement or plan which has the effect of sanctioning discrimination.

(c) Each state agency shall analyze all of its operations to ascertain possible instances of noncompliance with the policy of sections 46a-70 to 46a-78, inclusive, and shall initiate comprehensive programs to remedy any defect found to exist.

(d) Every state contract or subcontract for construction on public buildings or for other public work or for goods and services shall conform to the intent of section 4a-60.

Sec. 4. Section 46a-72 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) All state agencies, including educational institutions, which provide employment referrals or placement services to public or private employers, shall accept job orders on a nondiscriminatory basis.

(b) Any job request indicating an intention to exclude any person because of race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness shall be rejected, unless it is shown by such public or private employers that such disability prevents performance of the work involved.

(c) All state agencies shall cooperate in programs developed by the Commission on Human Rights and Opportunities initiated for the purpose of broadening the base for job recruitment and shall further cooperate with all employers and unions providing such programs.

(d) The Labor Department shall encourage and enforce employers and labor unions to comply with the policy of sections 46a-70 to 46a-78, inclusive, and promote equal employment opportunities.

Sec. 5. Section 46a-73 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) No state department, board or agency may grant, deny or revoke the license or charter of any person on the grounds of race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness, unless it is shown by such state department, board or agency that such disability prevents performance of the work involved.

(b) Each state agency shall take such appropriate action in the exercise of its licensing or regulatory power as will assure equal treatment of all persons and eliminate discrimination and enforce compliance with the policy of sections 46a-70 to 46a-78, inclusive.

Sec. 6. Section 46a-75 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) All educational, counseling, and vocational guidance programs and all apprenticeship and on-the-job training programs of state agencies, or in which state agencies participate, shall be open to all qualified persons, without regard to race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness.

(b) Such programs shall be conducted to encourage the fullest development of the interests, aptitudes, skills, and capacities of all students and trainees, with special attention to the problems of culturally deprived, educationally handicapped, learning disabled, economically disadvantaged, or physically disabled, including, but not limited to, blind persons.

(c) Expansion of training opportunities under these programs shall be encouraged so as to involve larger numbers of participants from those segments of the labor force where the need for upgrading levels of skill is greatest.

Sec. 7. Section 46a-76 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) Race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including, but not limited to, blindness shall not be considered as limiting factors in state-administered programs involving the distribution of funds to qualify applicants for benefits authorized by law.

(b) No state agency may provide grants, loans or other financial assistance to public agencies, private institutions or organizations which discriminate.

Sec. 8. Section 46a-60 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) It shall be a discriminatory practice in violation of this section:

(1) For an employer, by [himself] the employer or [his] the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against [him] such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental [disorder] disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(2) For any employment agency, except in the case of a bona fide occupational qualification or need, to fail or refuse to classify properly or refer for employment or otherwise to discriminate against any individual because of [his] such individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental [disorder] disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(3) For a labor organization, because of the race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental [disorder] disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bona fide occupational qualification;

(4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because [he] such person has opposed any discriminatory employment practice or because [he] such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84;

(5) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so;

(6) For any person, employer, employment agency or labor organization, except in the case of a bona fide occupational qualification or need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental [disorder] disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;

(7) For an employer, by [himself] the employer or [his] the employer's agent: (A) To terminate a woman's employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; (C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer; (D) to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer's circumstances have so changed as to make it impossible or unreasonable to do so; (E) to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus; (F) to fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or (G) to fail or refuse to inform [his] employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position;

(8) For an employer, by [himself] the employer or [his] the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex. "Sexual harassment" shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment;

(9) For an employer, by [himself] the employer or [his] the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to request or require information from an employee, person seeking employment or member relating to the individual's child bearing age or plans, pregnancy, function of the individual's reproductive system, use of birth control methods, or the individual's familial responsibilities, unless such information is directly related to a bona fide occupational qualification or need, provided an employer, through a physician may request from an employee any such information which is directly related to workplace exposure to substances which may cause birth defects or constitute a hazard to an individual's reproductive system or to a fetus if the employer first informs the employee of the hazards involved in exposure to such substances;

(10) For an employer, by [himself] the employer or [his] the employer's agent, after informing an employee, pursuant to subdivision (9) of this subsection, of a workplace exposure to substances which may cause birth defects or constitute a hazard to an employee's reproductive system or to a fetus, to fail or refuse, upon the employee's request, to take reasonable measures to protect the employee from the exposure or hazard identified, or to fail or refuse to inform the employee that the measures taken may be the subject of a complaint filed under the provisions of this chapter. Nothing in this subdivision is intended to prohibit an employer from taking reasonable measures to protect an employee from exposure to such substances. For the purpose of this subdivision, "reasonable measures" shall be those measures which are consistent with business necessity and are least disruptive of the terms and conditions of the employee's employment;

(11) For an employer, by [himself] the employer or [his] the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to discharge, expel or otherwise discriminate against any person on the basis of genetic information. For the purpose of this subdivision, "genetic information" means the information about genes, gene products or inherited characteristics that may derive from an individual or a family member.

(b) (1) The provisions of this section concerning age shall not apply to: (A) The termination of employment of any person with a contract of unlimited tenure at an independent institution of higher education who is mandatorily retired, on or before July 1, 1993, after having attained the age of seventy; (B) the termination of employment of any person who has attained the age of sixty-five and who, for the two years immediately preceding such termination, is employed in a bona fide executive or a high policy-making position, if such person is entitled to an immediate nonforfeitable annual retirement benefit under a pension, profit-sharing, savings or deferred compensation plan, or any combination of such plans, from [his] such person's employer, which equals, in aggregate, at least forty-four thousand dollars; (C) the termination of employment of persons in occupations, including police work and fire-fighting, in which age is a bona fide occupational qualification; (D) the operation of any bona fide apprenticeship system or plan; or (E) the observance of the terms of a bona fide seniority system or any bona fide employee benefit plan for retirement, pensions or insurance which is not adopted for the purpose of evading said provisions, except that no such plan may excuse the failure to hire any individual and no such system or plan may require or permit the termination of employment on the basis of age. No such plan which covers less than twenty employees may reduce the group hospital, surgical or medical insurance coverage provided under the plan to any employee who has reached the age of sixty-five and is eligible for Medicare benefits or any employee's spouse who has reached age sixty-five and is eligible for Medicare benefits except to the extent such coverage is provided by Medicare. The terms of any such plan which covers twenty or more employees shall entitle any employee who has attained the age of sixty-five and any employee's spouse who has attained the age of sixty-five to group hospital, surgical or medical insurance coverage under the same conditions as any covered employee or spouse who is under the age of sixty-five.

(2) No employee retirement or pension plan may exclude any employee from membership in such plan or cease or reduce [his] the employee's benefit accruals or allocations under such plan on the basis of age. The provisions of this subdivision shall be applicable to plan years beginning on or after January 1, 1988, except that for any collectively bargained plan this subdivision shall be applicable on the earlier of (A) January 1, 1990, or (B) the later of (i) the expiration date of the collective bargaining agreement, or (ii) January 1, 1988.

(3) The provisions of this section concerning age shall not prohibit an employer from requiring medical examinations for employees for the purpose of determining such employees' physical qualification for continued employment.

(4) Any employee who continues employment beyond the normal retirement age in the applicable retirement or pension plan shall give notice of intent to retire, in writing, to [his] such employee's employer not less than thirty days prior to the date of such retirement.

Sec. 9. Section 46a-77 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) All state agencies shall cooperate with the Commission on Human Rights and Opportunities in their enforcement and educational programs.

(b) All state agencies shall comply with the commission's request for information concerning practices inconsistent with the state policy against discrimination and shall consider its recommendations for effectuating and implementing that policy.

(c) Each state agency shall comply in all of its services, programs and activities with the provisions of the Americans with Disabilities Act (42 USC 12101) to the same extent that it provides rights and protections for persons with physical or mental disabilities beyond those provided for by the laws of this state.

[(c)] (d) The commission shall continue to augment its enforcement and education programs which seek to eliminate all discrimination.

Approved May 25, 2001