S.F. 66 Section 1. Section 216.2, Code 2017, is amended by adding 1 the following new subsections: 2 NEW SUBSECTION . 01. “Adverse action” means any action 3 that might dissuade a reasonable employee from engaging in 4 activities protected under this chapter. “Adverse action” 5 includes but is not limited to failing to reinstate the 6 employee to the employee’s original job or to an equivalent 7 position with equivalent pay and accumulated seniority, 8 retirement, fringe benefits, and other applicable service 9 credits when the employee’s need for a reasonable accommodation 10 ceases. 11 NEW SUBSECTION . 14A. “ Undue hardship” means an action 12 requiring significant difficulty or expense. 13 Sec. 2. Section 216.6, subsection 2, paragraph a, Code 2017, 14 is amended to read as follows: 15 a. A written or unwritten employment policy or practice 16 which excludes from employment applicants or employees because 17 of the employee’s pregnancy is a prima facie violation of this 18 chapter . 19 Sec. 3. Section 216.6, subsection 2, Code 2017, is amended 20 by adding the following new paragraphs: 21 NEW PARAGRAPH . f. An employer shall provide to an employee 22 a private, secure, and sanitary space and break time to express 23 breast milk for a nursing child. 24 NEW PARAGRAPH . g. (1) For the purposes of this paragraph, 25 unless the context otherwise requires: 26 (a) “Reasonable accommodation” includes but is not limited 27 to more frequent or longer breaks, time off to recover 28 from childbirth, acquisition or modification of equipment, 29 performance of job duties while seated, temporary transfer to a 30 less strenuous or hazardous position, job restructuring, light 31 duty, assistance with manual labor, or modified work schedules. 32 (b) “Related medical condition” includes but is not limited 33 to lactation or the need to express breast milk for a nursing 34 child. 35 -1- LSB 1104XS (6) 87 je/sc 1/ 7

S.F. 66 (2) It shall be an unfair or discriminatory practice for an 1 employer to do any of the following: 2 (a) Deny a reasonable accommodation in the terms, 3 conditions, or privileges of employment to a job applicant or 4 employee based on the employee’s or applicant’s pregnancy, 5 childbirth, or related medical condition if the employee or 6 applicant requests a reasonable accommodation, unless the 7 employer can demonstrate that providing the accommodation would 8 impose an undue hardship on the employer’s program, enterprise, 9 or business. 10 (b) Retaliate or take adverse action against an employee who 11 requests or uses a reasonable accommodation pursuant to this 12 paragraph. 13 (c) Deny employment opportunities to a job applicant or 14 employee if such denial is based on the need of the employer 15 to make a reasonable accommodation to the job applicant or 16 employee pursuant to this paragraph. 17 (d) Require a job applicant or employee affected by 18 pregnancy, childbirth, or a related medical condition to accept 19 an accommodation that the applicant or employee declines to 20 accept. 21 (e) Require an employee to take employment leave if another 22 reasonable accommodation can be provided pursuant to this 23 paragraph without undue hardship to the employer. 24 (f) Make an inquiry prior to employment regarding a 25 job applicant’s pregnancy, childbirth, or related medical 26 condition. 27 (3) An employer shall engage in a timely, good-faith, and 28 interactive process with an employee to determine effective 29 reasonable accommodations pursuant to this paragraph. 30 (4) (a) An employer shall have the burden of proving undue 31 hardship under this paragraph. In making a determination of 32 undue hardship, factors to be considered by the commission 33 include but are not limited to: 34 (i) The nature and cost of the accommodation. 35 -2- LSB 1104XS (6) 87 je/sc 2/ 7

S.F. 66 (ii) The overall financial and other resources of the 1 employer. 2 (iii) The overall size of the business of the employer with 3 respect to the number of employees. 4 (iv) The number, type, and location of the employer’s 5 facilities. 6 (b) The fact that an employer provides or would be 7 required to provide a similar accommodation to another class 8 of employees that requires such accommodation shall create a 9 rebuttable presumption that the accommodation does not impose 10 an undue hardship on the employer. 11 (5) An employer shall post written notice in a form 12 prescribed by the commission of the right to be free from 13 discrimination in relation to pregnancy, childbirth, or a 14 related medical condition, including the right to reasonable 15 accommodations based on pregnancy, childbirth, or a related 16 medical condition, pursuant to this paragraph conspicuously 17 at the employer’s place of business in an area accessible 18 to employees. The notice shall state the employee’s right 19 to a private, secure, and sanitary space and break time to 20 express breast milk for a nursing child and shall include the 21 employer’s specific plan to meet this requirement. The notice 22 shall also be provided to the following: 23 (a) New employees at the commencement of employment. 24 (b) Existing employees by January 1, 2018. 25 (c) Any employee who notifies the employer of the employee’s 26 pregnancy within ten days of such notification. 27 (6) The commission shall develop courses of instruction 28 and conduct ongoing public education efforts as necessary to 29 inform employers, employees, employment agencies, and job 30 applicants regarding their rights and responsibilities under 31 this paragraph. 32 (7) This paragraph shall not be construed to narrow 33 or restrict any other provision of law relating to sex 34 discrimination or pregnancy, or to diminish any right or 35 -3- LSB 1104XS (6) 87 je/sc 3/ 7

S.F. 66 responsibility thereunder. 1 NEW PARAGRAPH . h. It is the intent of the general assembly 2 that a violation of this subsection constitutes an unfair or 3 discriminatory practice in violation of this chapter, subject 4 to the processes and remedies set forth in this chapter, and 5 further, that the burden-shifting analysis articulated by the 6 United States supreme court in McDonnell Douglas Corp. v. 7 Green, 411 U.S. 792 (1973), shall not be applicable to the 8 proper construction of this subsection. 9 EXPLANATION 10 The inclusion of this explanation does not constitute agreement with 11 the explanation’s substance by the members of the general assembly. 12 This bill prohibits an employer from denying a reasonable 13 accommodation in the terms, conditions, or privileges of 14 employment to a job applicant or employee based on the 15 employee’s or applicant’s pregnancy, childbirth, or related 16 medical condition upon request, unless the employer can 17 demonstrate that providing the accommodation would impose an 18 undue hardship on the employer. 19 The bill prohibits an employer from retaliating or taking 20 adverse action against an employee who requests or uses such a 21 reasonable accommodation. 22 The bill prohibits an employer from denying employment 23 opportunities to a job applicant or employee if such denial is 24 based on the need of the employer to make such a reasonable 25 accommodation. 26 The bill prohibits an employer from requiring a job 27 applicant or employee affected by pregnancy, childbirth, or a 28 related medical condition to accept an accommodation that the 29 applicant or employee declines to accept. 30 The bill prohibits an employer from requiring an employee 31 to take employment leave if another reasonable accommodation 32 can be provided pursuant to the bill without undue hardship to 33 the employer. 34 The bill prohibits an employer from making an inquiry 35 -4- LSB 1104XS (6) 87 je/sc 4/ 7

S.F. 66 prior to employment regarding a job applicant’s pregnancy, 1 childbirth, or related medical condition. 2 The bill defines “reasonable accommodation” to include but 3 not be limited to more frequent or longer breaks, time off 4 to recover from childbirth, acquisition or modification of 5 equipment, performance of job duties while seated, temporary 6 transfer to a less strenuous or hazardous position, job 7 restructuring, light duty, break time and private non-bathroom 8 space for expressing breast milk, assistance with manual labor, 9 or modified work schedules. 10 The bill defines “related medical condition” to include but 11 not be limited to lactation or the need to express breast milk 12 for a nursing child. 13 The bill defines “adverse action” as any action that might 14 dissuade a reasonable employee from engaging in activities 15 protected under Code chapter 216 and specifies that “adverse 16 action” includes but is not limited to failing to reinstate the 17 employee to the employee’s original job or to an equivalent 18 position with equivalent pay and accumulated seniority, 19 retirement, fringe benefits, and other applicable service 20 credits when the employee’s need for a reasonable accommodation 21 ceases. 22 The bill defines “undue hardship” as an action requiring 23 significant difficulty or expense. 24 The bill requires an employer to engage in a timely, 25 good-faith, and interactive process with an employee to 26 determine effective reasonable accommodations pursuant to the 27 bill. 28 The bill specifies that an employer shall have the burden 29 of proving undue hardship under the bill. The bill provides 30 a nonexclusive list of factors to be considered by the civil 31 rights commission in making such a determination. The bill 32 specifies that an employer who provides or would be required to 33 provide a similar accommodation to another class of employees 34 that requires such accommodation shall create a rebuttable 35 -5- LSB 1104XS (6) 87 je/sc 5/ 7

S.F. 66 presumption that the accommodation does not impose an undue 1 hardship on the employer. 2 The bill requires an employer to post written notice of the 3 right to be free from discrimination in relation to pregnancy, 4 childbirth, or a related medical condition, including the 5 right to reasonable accommodations and a private, secure, 6 and sanitary space and break time to express breast milk for 7 a nursing child, conspicuously at the employer’s place of 8 business in an area accessible to employees. The bill also 9 requires such notice to be provided to new employees, existing 10 employees by January 1, 2018, and any employee who notifies the 11 employer of the employee’s pregnancy. 12 The bill requires the civil rights commission to develop 13 courses of instruction and conduct ongoing public education 14 efforts as necessary to inform employers, employees, employment 15 agencies, and job applicants regarding their rights and 16 responsibilities under the bill. 17 The preceding provisions of the bill shall not be construed 18 to narrow or restrict any other provision of law relating to 19 sex discrimination or pregnancy, or to diminish any right or 20 responsibility thereunder. 21 The bill requires an employer to provide to an employee a 22 private, secure, and sanitary space and break time to express 23 breast milk for a nursing child. 24 Under current law, a written or unwritten employment policy 25 or practice which excludes from employment applicants or 26 employees because of the employee’s pregnancy is a prima facie 27 violation of Code chapter 216. The bill removes the phrase 28 “prima facie,” so that such employment policies or practices 29 are violations of Code chapter 216. 30 The bill states that it is the intent of the general 31 assembly that a violation of Code section 216.6, subsection 2, 32 which governs employment policies relating to pregnancy and 33 childbirth, constitutes an unfair or discriminatory practice 34 in violation of Code chapter 216, subject to the processes 35 -6- LSB 1104XS (6) 87 je/sc 6/ 7

S.F. 66 and remedies set forth in Code chapter 216, and further, that 1 the burden-shifting analysis articulated by the United States 2 supreme court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 3 (1973), shall not be applicable to the proper construction of 4 Code section 216.6, subsection 2. 5 Penalty provisions for discriminatory employment practices 6 are applicable to the requirements established in the bill. 7 -7- LSB 1104XS (6) 87 je/sc 7/ 7