Bill Text: AZ HB2630 | 2022 | Fifty-fifth Legislature 2nd Regular | Introduced
Bill Title: Employment; conditions; labor organizations; discrimination
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2022-06-23 - Introduced in House and read first time [HB2630 Detail]
Download: Arizona-2022-HB2630-Introduced.html
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REFERENCE TITLE: employment; conditions; labor organizations; discrimination |
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State of Arizona House of Representatives Fifty-fifth Legislature Second Regular Session 2022
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HB 2630 |
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Introduced by Representatives Andrade: Bolding, Hernandez M, Powers Hannley, Solorio, Senator Gabaldon
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AN ACT
amending sections 23-408 and 23-908, Arizona Revised Statutes; amending Title 23, chapter 6, article 1, Arizona Revised Statutes, by adding section 23-911; amending section 23-1342, Arizona Revised Statutes; amending Title 23, chapter 8, article 3, Arizona Revised Statutes, by adding section 23-1343; amending sections 41-1463, 41-1464 and 41-1481, Arizona Revised Statutes; relating to labor.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 23-408, Arizona Revised Statutes, is amended to read:
23-408. Inspection of places and practices of employment; closing conference; prohibitions; employee initiation of investigation; violation; classification; injunction
A. Except as prescribed in section 23-432, subsection E, the director of the division of occupational safety and health, or the director's authorized representative, on presentation of credentials, shall be permitted allowed to inspect places of employment, question employees and investigate conditions, practices or matters in connection with employment subject to this article at reasonable times, as the director or the director's authorized representative may deem appropriate to determine whether any person has violated any provision of this article or any rule or regulation issued pursuant to this article or that may aid in the enforcement of enforcing this article. An employer or other person shall not refuse to admit the director or the director's authorized representatives to any place or refuse to permit allow the inspection if the proper credentials are presented and the inspection is made at a reasonable time.
B. In making inspections and investigations, the director or the director's authorized representative may require the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage paid to witnesses in the courts of this state. If any person fails or refuses to obey such an order, the director or the director's authorized representative may apply to any superior court in any county where the person is found, resides or transacts business for an order requiring the person to produce evidence and to give testimony as ordered. Failure to obey such an order is contempt of court.
C. The director or the director's authorized representative shall inspect at least every six months any operation that mixes rock, sand, gravel or similar materials with water and cement or with asphalt and that is not included in the definition of mine in section 27-301. The director or the director's authorized representative shall monitor and work with the mine inspector only to the extent necessary to ensure this state's compliance with federal occupational safety and health act standards, (P.L. 91-596).
D. Notice of an intended inspection shall not be given to an employer before the time of actual entry on the workplace, except by specific authorization by the director.
E. A representative of the employer and a representative authorized by the employer's employees shall be given an opportunity to accompany the director or the director's authorized representative during the physical inspection of any workplace for the purpose of aiding the inspection. Where If there is no authorized employee representative, the director or the director's authorized representative shall consult a reasonable number of employees concerning matters of safety and health in the workplace.
F. Except as provided in section 23-426, information and facts developed by the commission, the director or any employee of the commission or division in the course of any inspection or investigation are public records subject to inspection pursuant to title 39, chapter 1, article 2, if, pursuant to section 23-415, subsection D, the inspection or investigation has been closed or a citation has been issued. Such The information and facts shall not be admissible in any court or before any administrative body except pursuant to this article. Notwithstanding this subsection, the director or any commission employee is not required to appear at any deposition, trial or hearing concerning a division inspection or investigation unless the appearance is related to a hearing held pursuant to this article. Hearings held pursuant to this article are open to the public.
G. During the inspection or investigation and in deciding whether to recommend and issue a citation, the director or the director's authorized representative and the commission may consider whether an employee has committed misconduct by violating the employer's policies, if any, regarding substance abuse while working, as evidenced by the results of testing for substance abuse or other evidence of impairment while working.
H. An employee of the division or the commission may not:
1. Before, during or after an inspection or investigation, communicate to an employer that the employer should not be represented by an attorney or that the employer may be treated more favorably by the division or the commission if the employer is not represented by an attorney.
2. Conduct an audio recording of an oral statement provided during an interview without the knowledge and consent of the person being interviewed. The employee of the division or the commission shall inform the person being interviewed of the person's right to receive a copy of the recorded oral statement within a reasonable time.
3. Obtain a written statement during an interview without informing the person of the person's right to receive a copy of the written statement within a reasonable time.
I. An employee or a representative of employees who believes that a violation of a safety or health standard or regulation exists that threatens physical harm or that an imminent danger exists may request an investigation by giving notice to the director or the director's authorized representative of the violation or danger. Any notice shall be in writing, set forth with reasonable particularity the grounds for the notice and be signed by the employees or representative of the employees. On the request of the employee giving the notice, the employee's name and the names of other employees referred to in the notice shall not appear on any copy of the notice or any record published, released or made available. On receiving the notice, the director shall notify the employer that a notice has been filed. If on receipt of the notice the director determines that there are reasonable grounds to believe that the violation or danger exists, the director shall make an investigation in accordance with this article as soon as practicable to determine if the violation or danger exists. If the director determines there are no reasonable grounds to believe that a violation or danger exists, the director shall notify the employees or representative of the employees in writing of the determination. On receiving notice from the director, the employer may not require any employee to perform any duty relating to the alleged violation or danger until the director has determined whether the violation or danger exists. If the director determines a violation or danger exists, the employer may not require any employee to perform any duty relating to the violation or danger until the violation or danger is corrected.
J. Any person who violates any provision of this section is guilty of a class 2 misdemeanor.
K. The commission, or the commission's authorized representative, in addition to initiating an action under subsection I of this section, may file in the superior court in the county where the inspection was refused a verified complaint against an employer who violates subsection A of this section and request an injunction against continued refusal to permit allow an inspection.
Sec. 2. Section 23-908, Arizona Revised Statutes, is amended to read:
23-908. Injury reports by employer and physician; schedule of fees; violation; classification
A. Every employer that is affected by this chapter, and every physician who attends an injured employee of that employer, shall file with the commission and the employer's insurance carrier from time to time a full and complete report of every known injury to the employee arising out of or in the course of employment and resulting in loss of life or injury. The report shall be furnished to the commission and the insurance carrier at times and in the form and detail the commission prescribes, and the report shall make special answers to all questions required by the commission under its rules.
B. The commission shall fix a schedule of fees to be charged by physicians, physical therapists or occupational therapists attending injured employees and, subject to subsection C of this section, for prescription medicines required to treat an injured employee under this chapter. Notwithstanding subsection C of this section, the schedule of fees may include other reimbursement guidelines for medications dispensed in settings that are not accessible to the general public. The commission shall annually review the schedule of fees. For the purposes of this subsection, settings that are not accessible to the general public do not include mail order pharmacies delivering pharmaceutical services to workers' compensation claimants, if both of the following apply:
1. The pharmacy does not limit or restrict access to claimants with an affiliation to a medical provider or other entity.
2. Any medical provider or other entity referring a claimant to the pharmacy does not receive or accept any rebate, refund, commission, preference or other consideration as compensation for the referral.
C. If a schedule of fees for prescription medicines adopted pursuant to subsection B of this section includes provisions regarding the use of generic equivalent drugs or interchangeable biological products, those provisions shall comply with section 32-1963.01, subsections A, B and D through L. If the commission considers the adoption of fee schedule provisions that involve specific prices, values or reimbursements for prescription drugs, the commission shall base the adoption on studies or practices that are validated and accepted in the industry, including the applicability of formulas that use average wholesale price, plus a dispensing fee, and that have been made publicly available for at least one hundred eighty days before any hearing conducted by the commission.
D. Notwithstanding section 12-2235, information obtained by any physician or surgeon examining or treating an injured person shall not be considered a privileged communication if that information is requested by interested parties for a proper understanding of the case and a determination of the rights involved. Hospital records of an employee concerning an industrial claim shall not be considered privileged if requested by an interested party in order to determine the rights involved. Medical information from any source pertaining to conditions unrelated to the pending industrial claim shall remain privileged.
E. When an accident occurs to an employee, the employee shall forthwith report the accident and the injury resulting from the accident to the employer, and any physician employed by the injured employee shall forthwith report the accident and the injury resulting from the accident to the employer, the insurance carrier and the commission. an employee who reports an injury pursuant to this subsection is entitled to receive immediate medical attention.
F. If an accident occurs to an employee, the employer may designate in writing a physician chosen by the employer, who shall be allowed by the employee, or any person in charge of the employee, to make one examination of the injured employee in order to ascertain the character and extent of the injury occasioned by the accident. The physician so chosen shall forthwith report to the employer, the insurance carrier and the commission the character and extent of the injury as the physician ascertains. If the accident is not reported by the employee or the employee's physician forthwith, as required, or if the injured employee or those in charge of the employee refuse to allow the employer's physician to make the examination, and the injured employee is a party to the refusal, no compensation shall not be paid for the injury claimed to have resulted from the accident. The commission may relieve the injured person or that person's dependents from the loss or forfeiture of compensation if it the commission believes after investigation that the circumstances attending the failure on the part of the employee or physician to report the accident and injury are such as to have excused them.
G. Within ten days after receiving notice of an accident, the employer shall inform the insurance carrier and the commission on the forms and in the manner as prescribed by the commission.
H. Immediately on notice to the employer of an accident resulting in an injury to an employee, the employer shall provide the employee with the name and address of the employer's insurance carrier, the policy number and the expiration date.
I. Any person failing or refusing to comply with this section is guilty of a petty offense.
J. Subsection B of this section does not prohibit:
1. A healthcare provider or pharmacy from entering into a separate contract or network that governs fees, in which case reimbursement shall be made according to the applicable contracted charge or negotiated rate.
2. An employer from directing medical, surgical or hospital care pursuant to the provisions of section 23-1070.
Sec. 3. Title 23, chapter 6, article 1, Arizona Revised Statutes, is amended by adding section 23-911, to read:
23-911. Injury reenactment prohibited
An employer may not require any employee to reenact an injury arising out of or in the course of employment if that injury resulted in the loss of life or an injury.
Sec. 4. Section 23-1342, Arizona Revised Statutes, is amended to read:
23-1342. Compelling or coercing another not to join labor union as requisite to employment; retaliation, harassment and intimidation; violation, classification; labor organization presentations
A. A person who coerces or compels any other person to enter into an agreement, either written or oral, not to join or become a member of a labor organization, as a condition of the other person obtaining employment or continuing in the employment of such person, or a person who retaliates against, harasses or intimidates any other person for seeking to join or become a member of a labor organization, is guilty of a class 2 misdemeanor.
B. An employer shall allow a labor organization to offer presentations to new employees. Presentations allowed pursuant to this subsection may not be more than one hour, unless the employer and labor organization agree on a longer time limit.
Sec. 5. Title 23, chapter 8, article 3, Arizona Revised Statutes, is amended by adding section 23-1343, to read:
23-1343. Employer policy effect on labor contracts
An employer policy does not supersede any valid provision of a collective bargaining agreement.
Sec. 6. Section 41-1463, Arizona Revised Statutes, is amended to read:
41-1463. Discrimination; unlawful practices; definition
A. Nothing contained in This article shall be interpreted to does not require that the less qualified be preferred over the better qualified simply because of race, color, religion, sex, gender, gender identity or expression, sexual orientation, marital status, 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, gender, gender identity or expression, sexual orientation, marital status, age or national origin or on the basis of disability.
2. To limit, segregate or classify employees or applicants for employment in any way that 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, gender, gender identity or expression, sexual orientation, marital status, 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 J, 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, gender, gender identity or expression, sexual orientation, marital status, 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, gender, gender identity or expression, sexual orientation, marital status, 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, gender, gender identity or expression, sexual orientation, marital status, 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 that 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, gender, gender identity or expression, sexual orientation, marital status, 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, gender, gender identity or expression, sexual orientation, marital status, 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 5, 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. Women who are affected by pregnancy or childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and subsection J, paragraph 3 of this section may not be interpreted to allow otherwise.
H. 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, gender or national origin in those certain instances when religion, sex, gender 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 on 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 an employee benefit plan may not excuse the failure to hire any individual and no a seniority system or employee benefit plan may not require or allow the involuntary retirement of any individual specified by section 41-1465 because of the individual's age.
(c) To discharge or otherwise discipline an individual for good cause.
I. For the purposes of 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.
J. 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 that measures earnings by quantity or quality of production or to employees who work in different locations, if these differences are not the result of an intention to discriminate because of race, color, religion, sex, gender, gender identity or expression, sexual orientation, marital status or national origin.
2. For an employer to give and act on the results of any professionally developed ability test if the test, its administration or action on the results is not designed, intended or used to discriminate because of race, color, religion, sex, gender, gender identity or expression, sexual orientation, marital status or national origin.
3. For any employer to differentiate on the basis of sex, gender, gender identity or expression, sexual orientation, marital status 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)).
K. Nothing contained in This chapter applies does not apply 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.
L. Nothing contained in This article or and article 6 of this chapter requires do not require 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, gender, gender identity or expression, sexual orientation, marital status or national origin of the individual or group on account of an imbalance that may exist with respect to the total number or percentage of persons of any race, color, religion, sex, gender, gender identity or expression, sexual orientation, marital status 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, gender, gender identity or expression, sexual orientation, marital status or national origin in any community, state, section or other area, or in the available workforce in any community, state, section or other area. this article and article 6 of this chapter do not require any employer, employment agency, labor organization or joint labor-management committee subject to this article to retain or maintain records regarding an INDIVIDUAL'S or group's sex, gender, gender identity or expression, sexual orientation or marital status.
M. The age discrimination prohibitions of this article may not be construed to do not prohibit compulsory retirement of any employee who has attained sixty-five years of age and who, for the two year 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, that equals, in the aggregate, at least $44,000. 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.
N. 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.
O. 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.
P. 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.
Sec. 7. Section 41-1464, Arizona Revised Statutes, is amended to read:
41-1464. Other unlawful employment practices; opposition to unlawful practices; filing of charges; participation in proceedings; notices and advertisements for employment
A. It is an unlawful employment practice for an employer to discriminate against any of the employer's employees or applicants for employment, for an employment agency or joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, to discriminate against any individual or for a labor organization to discriminate against any member or applicant for membership because the employee, the member, the applicant or the individual in an apprenticeship or other training or retraining program has opposed any practice that is an unlawful employment practice under this article or has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under article 6 of this chapter.
B. It is an unlawful employment practice for an employer, labor organization, employment agency or joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by an the employer or membership in or any classification or referral for employment by a the labor organization, or relating to any classification or referral for employment by an the employment agency or relating to admission or to employment in any program established to provide apprenticeship or other training by a the joint labor-management committee indicating any preference, limitation, specification or discrimination based on race, color, religion, sex, gender, gender identity or expression, sexual orientation, marital status or national origin, except that a the notice or advertisement may indicate a preference, limitation, specification or discrimination based on religion, sex, gender or national origin when religion, sex, gender or national origin is a bona fide occupational qualification for employment.
C. It is unlawful for an employer, labor organization or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by an employer or membership in or any classification or referral for employment by a labor organization or relating to any classification or referral for employment by an employment agency, indicating any preference, limitation, specification or discrimination based on age, except that the notice or advertisement may indicate a preference, limitation, specification or discrimination based on age when age is a bona fide occupational qualification for employment.
Sec. 8. Section 41-1481, Arizona Revised Statutes, is amended to read:
41-1481. Filing charges; investigation; findings; conciliation; compliance proceedings; appeals; attorney fees; violation; classification
A. A charge under this section shall be filed within one hundred eighty days after the alleged unlawful employment practice occurred. A charge is deemed filed on receipt by the division from or on behalf of a person claiming to be aggrieved or, if filed by a member of the division, when executed by the member on oath or affirmation. A charge is deemed filed by or on behalf of a person claiming to be aggrieved if received from the United States equal employment opportunity commission. A charge shall must be in writing on oath or affirmation and shall contain the information, including the date, place and circumstances of the alleged unlawful employment practice, and be in the form as the division requires. The division shall not make charges public.
B. Whenever a charge is filed by or on behalf of a person claiming to be aggrieved or by a member of the division, referred to as the charging party, alleging that an employer, employment agency, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, has engaged in an unlawful employment practice, the division shall serve notice of and a copy of the charge on the employer, employment agency, labor organization or joint labor-management committee, referred to as the respondent, within ten days and shall investigate the charge. If the division determines after the investigation that there is not reasonable cause to believe that the charge is true, the division shall enter an order determining the same and dismissing the charge and shall notify the charging party and the respondent of its action. If the division determines after the investigation that there is reasonable cause to believe that the charge is true, the division shall enter an order containing its findings of fact and shall endeavor to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation and persuasion. Any party to the informal proceeding may be represented by counsel. Counsel need not be a member of the state bar if counsel is licensed to practice law in any other state or territory of the United States. Nothing said or done during and as a part of the informal endeavors may be made public by the division or its officers or employees or used as evidence in a subsequent proceeding without the written consent of the persons concerned. If a civil action resulting from a charge is commenced in any federal or state court, evidence collected by or submitted to the division during the investigation of the charge and the source of the evidence shall be subject to discovery by the parties to the civil action. Any person who makes public information in violation of this subsection is guilty of a class 1 misdemeanor. The division shall make its determination on reasonable cause as promptly as possible and as far as practicable not later than sixty days from after the filing of the charge. If more than two years have elapsed after the alleged unlawful employment practice occurred, and if the charging party has received a notice of right to sue, the division may cease investigation of a charge without reaching a determination.
C. All conciliation agreements shall must provide that the charging party waives, releases and covenants not to sue the respondent or claim against the respondent in any forum with respect to the matters which that were alleged as charges filed with the division, subject to performance by the respondent of the promises and representations contained in the conciliation agreement. The charging party or the respondent may prepare a conciliation agreement that the division shall submit to the other party and that, if accepted by the other party, shall be accepted by the division.
D. If within thirty days after the division has made a determination that reasonable cause exists to believe that the charge is true the division has not accepted a conciliation agreement to which the charging party and the respondent are parties, the division may bring a civil action against the respondent, other than the state, named in the charge. The charging party shall have the right to intervene in a civil action brought by the division. If a charge filed with the division pursuant to subsection A of this section is dismissed by the division or if within ninety days from after the filing of such the charge the division has not filed a civil action under this section or has not entered into a conciliation agreement with the charging party, the division shall so notify the charging party. After providing the notice a civil action may be brought against the respondent named in the charge by the charging party or, if that charge was filed by a member of the division, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. In no event shall any An action may not be brought pursuant to this article more than one year after the charge to which the action relates has been filed. On application by the complainant and in the circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs or security. On timely application, the court may in its discretion allow the division to intervene in civil actions in which the state is not a defendant on certification that the case is of general public importance. Upon on request the court may stay further proceedings for not more than sixty days pending the further efforts of the parties or the division to obtain voluntary compliance.
E. Whenever a charge is filed with the division and the division concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this article or article 4 of this chapter, the division may bring an action for appropriate temporary or preliminary relief pending final disposition of the charge. Any temporary restraining order or other order granting preliminary or temporary relief shall must be issued in accordance with the Arizona rules of civil procedure. The court having jurisdiction over the proceedings shall assign such the action for a hearing at the earliest practicable date and cause the action to be expedited in every way.
F. The court shall assign any action brought under this article for a hearing at the earliest practicable date and cause the action to be in every way expedited. If the action has not been scheduled for trial within one hundred twenty days after issue has been joined, the judge may appoint a master pursuant to rule 53 of the Arizona rules of civil procedure.
G. If the court finds that the defendant has intentionally engaged in or is intentionally engaging in an unlawful employment practice alleged in the complaint, the court may enjoin the defendant from engaging in the unlawful employment practice and order the affirmative action as may be that the court determines is appropriate. Affirmative action may include, but is not limited to, reinstatement or hiring of employees with or without back pay payable by the employer, employment agency or labor organization responsible for the unlawful employment practice or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years before the filing of the charge with the division. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall reduce the back pay otherwise allowable. An order of the court shall not require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement or promotion of an individual as an employee or the payment to the individual of any back pay if the individual was refused admission, suspended or expelled or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, gender, gender IDENTITY or expression, sexual orientation, marital status, age, disability or national origin or a violation of section 41-1464.
H. In any case in which if an employer, employment agency or labor organization fails to comply with an order of a court issued in a civil action brought under this section, a party to the action or the division on the written request of a person aggrieved by such the failure may commence proceedings to compel compliance with the order.
I. Any civil action brought under this section and any proceedings brought under subsection H of this section are subject to appeal as provided in sections 12-120.21, 12-120.22 and 12-120.24.
J. In any action or proceeding under this section the court may allow the prevailing party, other than the division, a reasonable attorney fee as part of the costs.
