Senate Bill No. 450–Committee on Government Affairs

 

(On Bhealf of Equal Rights Commission of Nevada)

 

March 24, 2003

____________

 

Referred to Committee on Government Affairs

 

SUMMARY—Makes various changes to provisions governing Nevada Equal Rights Commission. (BDR 18‑475)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to the Nevada Equal Rights Commission; requiring the Commission to adopt the processing of complaints; revising requirements regarding the confidentiality of complaints and investigations; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 233 of NRS is hereby amended by adding

1-2  thereto a new section to read as follows:

1-3  The Commission shall accept any complaint alleging an

1-4  unlawful discriminatory practice over which it has jurisdiction

1-5  pursuant to this chapter. The Commission shall adopt regulations

1-6  setting forth the manner in which the Commission will process

1-7  any such complaint and determine whether to hold an informal

1-8  meeting or conduct an investigation concerning the complain.

1-9  Sec. 2.  NRS 233.020 is hereby amended to read as follows:

1-10      233.020  As used in this chapter:

1-11      1.  “Administrator” means the Administrator of the

1-12  Commission.

1-13      2.  “Commission” means the Nevada Equal Rights Commission

1-14  [.

2-1  2.  “Director” means the Executive Director of the Nevada

2-2  Equal Rights Commission.] within the Department of Employment,

2-3  Training and Rehabilitation.

2-4  3.  “Disability” means, with respect to a person:

2-5  (a) A physical or mental impairment that substantially limits one

2-6  or more of the major life activities of the person;

2-7  (b) A record of such an impairment; or

2-8  (c) Being regarded as having such an impairment.

2-9  4.  “Member” means a member of the Nevada Equal Rights

2-10  Commission.

2-11      Sec. 3.  NRS 233.090 is hereby amended to read as follows:

2-12      233.090  The Governor shall appoint an [Executive Director]

2-13  Administrator of the Commission. The [Director shall]

2-14  Administrator must have had successful experience in the

2-15  administration and promotion of a program comparable to the

2-16  program provided by this chapter.

2-17      Sec. 4.  NRS 233.100 is hereby amended to read as follows:

2-18      233.100  The [Director] Administrator is in the unclassified

2-19  service of the State.

2-20      Sec. 5.  NRS 233.110 is hereby amended to read as follows:

2-21      233.110  The [Director] Administrator shall:

2-22      1.  Be jointly responsible to the Governor and the Commission.

2-23      2.  Direct and supervise all of the technical and administrative

2-24  activities of the Commission.

2-25      3.  Perform any lawful act which he considers necessary or

2-26  desirable to carry out the purposes and provisions of this chapter.

2-27      Sec. 6.  NRS 233.150 is hereby amended to read as follows:

2-28      233.150  The Commission may:

2-29      1.  Order its [Executive Director] Administrator to investigate

2-30  tensions, practices of discrimination and acts of prejudice against

2-31  any person or group because of race, color, creed, sex, age,

2-32  disability, national origin or ancestry, and may conduct hearings

2-33  with regard thereto.

2-34      2.  Mediate between or reconcile the persons or groups involved

2-35  in those tensions, practices and acts.

2-36      3.  Issue subpoenas for the attendance of witnesses or for the

2-37  production of documents or tangible evidence relevant to any

2-38  investigations or hearings conducted by the Commission.

2-39      4.  Delegate its power to hold hearings and issue subpoenas to

2-40  any of its members or any hearing officer in its employ.

2-41      5.  Adopt reasonable regulations necessary for the Commission

2-42  to carry out the functions assigned to it by law.

2-43      Sec. 7.  NRS 233.165 is hereby amended to read as follows:

2-44      233.165  1.  [The Commission shall:] If the Commission

2-45  determines to conduct an investigation of a complaint which

3-1  alleges an unlawful discriminatory practice in housing in

3-2  accordance with the regulations adopted pursuant to section 1 of

3-3  this act, the Commission must:

3-4  (a) Begin an investigation of [a complaint which alleges an

3-5  unlawful discriminatory practice in housing] the complaint within

3-6  30 days after it receives the complaint.

3-7  (b) Complete its investigation of the complaint within 100 days

3-8  after it receives the complaint unless it is impracticable to do so.

3-9  (c) Make a final disposition of the complaint within 1 year after

3-10  the date it receives the complaint unless it is impracticable to do so.

3-11      2.  If the Commission determines that it is impracticable to

3-12  complete an investigation or make a final disposition of a complaint

3-13  which alleges an unlawful discriminatory practice in housing within

3-14  the period prescribed in subsection 1, the Commission shall send to

3-15  the complainant and the person against whom the complaint was

3-16  filed a statement setting forth its reasons for not completing the

3-17  investigation or making a final disposition of the complaint within

3-18  that period.

3-19      Sec. 8.  NRS 233.170 is hereby amended to read as follows:

3-20      233.170  1.  When a complaint is filed whose allegations if

3-21  true would support a finding of unlawful practice, the Commission

3-22  shall determine whether to hold an informal meeting to attempt a

3-23  settlement of the dispute[. To prepare for the informal meeting, the

3-24  Executive Director] in accordance with the regulations adopted

3-25  pursuant to section 1 of this act. If the Commission determines to

3-26  hold an informal meeting, the Administrator may , to prepare for

3-27  the meeting, request from each party any information which is

3-28  reasonably relevant to the complaint. No further action may be taken

3-29  if the parties agree to a settlement.

3-30      2.  If an agreement is not reached [, the Executive Director of

3-31  the Commission] at the informal meeting, the Administrator shall

3-32  determine whether to conduct an investigation into the alleged

3-33  unlawful practice[.] in accordance with the regulations adopted

3-34  pursuant to section 1 of this act. After the investigation, if the

3-35  [Executive Director] Administrator determines that an unlawful

3-36  practice has occurred, [he] the Administrator shall attempt to

3-37  mediate between or reconcile the parties. The party against whom a

3-38  complaint was filed may agree to cease the unlawful practice. If an

3-39  agreement is reached, no further action may be taken by the

3-40  complainant or by the Commission.

3-41      3.  If the attempts at mediation or conciliation fail, the

3-42  Commission may hold a public hearing on the matter. After the

3-43  hearing, if the Commission determines that an unlawful practice has

3-44  occurred, it may:

4-1  (a) Serve a copy of its findings of fact within 10 calendar days

4-2  upon any person found to have engaged in the unlawful practice;

4-3  and

4-4  (b) Order the person to:

4-5       (1) Cease and desist from the unlawful practice.

4-6       (2) In cases involving an unlawful employment practice,

4-7  restore all benefits and rights to which the aggrieved person is

4-8  entitled, including , but not limited to, rehiring, back pay for a

4-9  period not to exceed 2 years after the date of the most recent

4-10  unlawful practice, annual leave time, sick leave time or pay, other

4-11  fringe benefits and seniority, with interest thereon from the date of

4-12  the Commission’s decision at a rate equal to the prime rate at the

4-13  largest bank in Nevada, as ascertained by the Commissioner of

4-14  Financial Institutions, on January 1 or July 1, as the case may be,

4-15  immediately preceding the date of the Commission’s decision, plus

4-16  2 percent. The rate of interest must be adjusted accordingly on each

4-17  January 1 and July 1 thereafter until the judgment is satisfied.

4-18      4.  The order of the Commission is a final decision in a

4-19  contested case for the purpose of judicial review. If the person fails

4-20  to comply with the Commission’s order, the Commission shall

4-21  apply to the district court for an order compelling such compliance,

4-22  but failure or delay on the part of the Commission does not

4-23  prejudice the right of an aggrieved party to judicial review. The

4-24  court shall issue the order unless it finds that the Commission’s

4-25  findings or order are not supported by substantial evidence or are

4-26  otherwise arbitrary or capricious. If the court upholds the

4-27  Commission’s order and finds that the person has violated the order

4-28  by failing to cease and desist from the unlawful practice or to make

4-29  the payment ordered, the court shall award the aggrieved party

4-30  actual damages for any economic loss and no more.

4-31      5.  After the Commission has held a public hearing and

4-32  rendered a decision, the complainant is barred from proceeding on

4-33  the same facts and legal theory before any other administrative body

4-34  or officer.

4-35      Sec. 9.  NRS 233.170 is hereby amended to read as follows:

4-36      233.170  1.  When a complaint is filed whose allegations if

4-37  true would support a finding of unlawful practice, the Commission

4-38  shall determine whether to hold an informal meeting to attempt a

4-39  settlement of the dispute[. To prepare for the informal meeting, the

4-40  Executive Director] in accordance with the regulations adopted

4-41  pursuant to section 1 of this act. If the Commission determines to

4-42  hold an informal meeting, the Administrator may , to prepare for

4-43  the meeting, request from each party any information which is

4-44  reasonably relevant to the complaint. Except as otherwise provided

5-1  in subsection 3, no further action may be taken if the parties agree to

5-2  a settlement.

5-3  2.  If an agreement is not reached[, the Executive Director of

5-4  the Commission] at the informal meeting, the Administrator shall

5-5  determine whether to conduct an investigation into the alleged

5-6  unlawful practice[.] in accordance with the regulations adopted

5-7  pursuant to section 1 of this act. After the investigation, if the

5-8  [Executive Director] Administrator determines that an unlawful

5-9  practice has occurred, [he] the Administrator shall attempt to

5-10  mediate between or reconcile the parties. The party against whom a

5-11  complaint was filed may agree to cease the unlawful practice.

5-12  Except as otherwise provided in subsection 3, if an agreement is

5-13  reached, no further action may be taken by the complainant or by

5-14  the Commission.

5-15      3.  If an agreement is reached by the parties in a case involving

5-16  a discriminatory practice in housing, the agreement must be

5-17  approved by the Commission. The agreement must be made public

5-18  unless the parties otherwise agree and the Commission determines

5-19  that disclosure is not necessary to further the purposes of chapter

5-20  118 of NRS.

5-21      4.  If the attempts at mediation or conciliation fail in a case

5-22  involving an unlawful practice in employment or public

5-23  accommodations, the Commission may hold a public hearing on the

5-24  matter. After the hearing, if the Commission determines that an

5-25  unlawful practice has occurred, it may:

5-26      (a) Serve a copy of its findings of fact within 10 calendar days

5-27  upon any person found to have engaged in the unlawful practice;

5-28  and

5-29      (b) Order the person to:

5-30          (1) Cease and desist from the unlawful practice.

5-31          (2) In cases involving an unlawful employment practice,

5-32  restore all benefits and rights to which the aggrieved person is

5-33  entitled, including, but not limited to, rehiring, back pay for a period

5-34  not to exceed 2 years after the date of the most recent unlawful

5-35  practice, annual leave time, sick leave time or pay, other fringe

5-36  benefits and seniority, with interest thereon from the date of the

5-37  Commission’s decision at a rate equal to the prime rate at the largest

5-38  bank in Nevada, as ascertained by the Commissioner of Financial

5-39  Institutions, on January 1 or July 1, as the case may be, immediately

5-40  preceding the date of the Commission’s decision, plus 2 percent.

5-41  The rate of interest must be adjusted accordingly on each January 1

5-42  and July 1 thereafter until the judgment is satisfied.

5-43      5.  If the attempts at mediation or conciliation fail in a case

5-44  involving an unlawful housing practice:

6-1  (a) The complainant or the person against whom the complaint

6-2  was filed may elect to have the claims included in the complaint

6-3  decided in a court of competent jurisdiction. If the court determines

6-4  that the person against whom the complaint was filed has committed

6-5  an unlawful housing practice, the court may:

6-6       (1) Award to the complainant actual damages and, within the

6-7  limitations prescribed by federal law, punitive damages.

6-8       (2) Award to the prevailing party costs and reasonable

6-9  attorney’s fees.

6-10          (3) Order such other relief as the court deems appropriate,

6-11  including, but not limited to:

6-12             (I) Ordering a permanent or temporary injunction;

6-13             (II) Issuing a temporary restraining order; or

6-14             (III) Enjoining the defendant from continuing the

6-15  unlawful practice or taking other such affirmative action.

6-16      (b) If an election is not made pursuant to paragraph (a), the

6-17  Commission shall hold a public hearing on the matter. After the

6-18  hearing, if the Commission determines that an unlawful practice has

6-19  occurred, it may:

6-20          (1) Serve a copy of its findings of fact within 10 days upon

6-21  any person found to have engaged in the unlawful practice;

6-22          (2) Order the person to cease and desist from the unlawful

6-23  practice;

6-24          (3) Award to the complainant actual damages; and

6-25          (4) Impose a civil penalty of not more than $25,000 upon the

6-26  person who committed the unlawful discriminatory practice.

6-27      6.  The order of the Commission is a final decision in a

6-28  contested case for the purpose of judicial review. If the person fails

6-29  to comply with the Commission’s order, the Commission shall

6-30  apply to the district court for an order compelling such compliance,

6-31  but failure or delay on the part of the Commission does not

6-32  prejudice the right of an aggrieved party to judicial review. The

6-33  court shall issue the order unless it finds that the Commission’s

6-34  findings or order are not supported by substantial evidence or are

6-35  otherwise arbitrary or capricious. If the court upholds the

6-36  Commission’s order and finds that the person has violated the order

6-37  by failing to cease and desist from the unlawful practice or to make

6-38  the payment ordered, the court shall award the aggrieved party

6-39  actual damages for any economic loss and no more.

6-40      7.  After the Commission has held a public hearing and

6-41  rendered a decision, the complainant is barred from proceeding on

6-42  the same facts and legal theory before any other administrative body

6-43  or officer.

 

 

7-1  Sec. 10.  NRS 233.180 is hereby amended to read as follows:

7-2  233.180  If, after the [Executive Director of the Commission]

7-3  Administrator has conducted a preliminary investigation into an

7-4  alleged unlawful discriminatory practice in housing, employment or

7-5  public accommodations, the Commission determines that the

7-6  practice will cause immediate and irreparable harm to any person

7-7  aggrieved by the practice, the Commission, after the informal

7-8  meeting and before holding a public hearing upon the matter, may

7-9  apply on behalf of such person to the district court for a temporary

7-10  restraining order or preliminary injunction as provided in the

7-11  Nevada Rules of Civil Procedure.

7-12      Sec. 11.  NRS 233.190 is hereby amended to read as follows:

7-13      233.190  [All]

7-14      1.  Except as otherwise provided in this section, any

7-15  information gathered by the Commission in the course of its

7-16  investigation of an alleged unlawful discriminatory practice in

7-17  housing, employment or public accommodations is confidential .

7-18  [until the]

7-19      2.  The Commission may disclose information gathered

7-20  pursuant to subsection 1 to:

7-21      (a) Any governmental entity as appropriate or necessary to

7-22  carry out its duties pursuant to this chapter; or

7-23      (b) To any other person if the information is provided in a

7-24  manner which does not include any information that may be used

7-25  to identity the complainant, the party against whom the unlawful

7-26  discriminatory practice is alleged or any person who provided

7-27  information to the Commission during the investigation.

7-28      3.  Except as otherwise provided in subsection 4, the

7-29  Commission shall disclose information gathered pursuant to

7-30  subsection 1 to the complainant and the party against whom the

7-31  unlawful discriminatory practice is alleged if:

7-32      (a) Each has consented to such disclosure; or

7-33      (b) The Commission has determined to conduct a hearing on the

7-34  matter or [applies] apply for a temporary restraining order or an

7-35  injunction[.

7-36      If] or an action has been filed in court concerning the

7-37  complaint.

7-38      4.  The Commission may not disclose to the complainant or

7-39  the party against whom the unlawful discriminatory practice is

7-40  alleged:

7-41      (a) Any information obtained during negotiations for a

7-42  settlement or attempts at mediating or conciliating the complaint.

7-43      (b) Any investigative notes or reports made by the Commission.

8-1  (c) Any information that may be used to identity a person who

8-2  provided information to the Commission for during the

8-3  investigation and who has requested anonymity.

8-4  5.  Except as otherwise provided in this section, if the

8-5  Commission’s attempts at mediating or conciliating the cause of the

8-6  grievance succeed, the information [shall] gathered pursuant to

8-7  subsection 1 must remain confidential.

8-8  6.  If the Commission proceeds with a hearing or applies for

8-9  injunctive relief, confidentiality concerning any information , except

8-10  negotiations for a settlement or attempts at mediating or

8-11  conciliating the cause of the grievance, is no longer required.

8-12      Sec. 12.  NRS 233.210 is hereby amended to read as follows:

8-13      233.210  Any person who willfully resists, prevents, impedes or

8-14  interferes with the Commission, its members, the [Director]

8-15  Administrator or agents in the performance of duties pursuant to

8-16  this chapter shall be fined not more than $500.

8-17      Sec. 13.  1.  This section and sections 1 to 8, inclusive, 10, 11

8-18  and 12 of this act become effective on October 1, 2003.

8-19      2.  Section 8 of this act expires by limitation on the date the

8-20  Governor declares that the Federal Government has determined that

8-21  certain provisions of NRS provide rights and remedies for alleged

8-22  discriminatory housing practices substantially equivalent to federal

8-23  law.

8-24      3.  Section 9 of this act becomes effective on the date the

8-25  Governor declares that the Federal Government has determined that

8-26  certain provisions of NRS provide rights and remedies for alleged

8-27  discriminatory housing practices substantially equivalent to federal

8-28  law.

 

8-29  H