(1) The Human Rights Commission (commission) is established by 2-15-1706, MCA. The commission is composed of five members of the public appointed by the Governor. The commission is allocated to the Department of Labor and Industry (department) for administrative purposes only. The commission adopts rules separately.

(2) The commission is designated a quasi-judicial board for purposes of 2-15-1706, MCA. Its purpose is to uphold the laws of the state of Montana against discrimination.

(3) The commission adopts the public participation rules of the Department of Labor and Industry as listed in chapter 2 of this title to the extent they do not conflict with statute or rule.

(1) The following rules describe the procedure followed by the Human Rights Commission in resolving complaints of discrimination.

(2) The commission will construe the provisions of the act, the code, and these rules liberally in all proceedings under them, with a view to effect their objects and to promote justice. A principle objective of the act and code is to assure that there will be no discrimination in certain areas of the lives of Montana citizens, except under the most limited of circumstances. Liberal construction of the act and code includes, without limitation, giving broad coverage and inclusive interpretation of the human rights statutes and rules to assure enforcement and protection of the state laws prohibiting discrimination.

(3) In construing the provisions of the act, the code, and the rules, the commission will refer to federal civil rights law and guidance where it is both useful and appropriate and does not conflict with the purposes and intentions of state law.

(4) If a part of these rules is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of these rules is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid application or applications.

(5) Where errors of law or procedure do not cause prejudice to a party or deny a party a fair hearing or fundamental justice, they may be disregarded. Parties who assign error for the violation of any rule must demonstrate that a failure to comply with these rules is in fact prejudicial or constitutes prejudice as a matter of law.

(6) Where strict adherence to these rules would cause undue hardship or create a substantial injustice to a party, the commission may modify, waive, or excuse their application. The commission may not modify, waive, or excuse mandatory acts which are required by statute or due process of law.

(7) Parties who choose not to be represented by counsel and who represent themselves must substantially comply with the provisions of these rules, subject to the provisions of (6). The commission may modify the strict application of these rules to an unrepresented party to the extent they are not mandatory in order to assure fundamental fairness.

The following definitions apply throughout this chapter:

(1) "The act" means the Human Rights Act, Title 49, chapter 2, MCA.

(2) "Charging party" means a person who files a complaint with the Human Rights Bureau of the Department of Labor and Industry.

(3) "The code" means the Governmental Code of Fair Practices, Title 49, chapter 3, MCA.

(4) "Commission" means the Human Rights Commission as established by 2-15-1706, MCA.

(5) "Department" means the Department of Labor and Industry.

(6) "Notice of dismissal and right to sue" means a document provided to the charging party by the Human Rights Bureau indicating that the charging party has completed the department's administrative process and can file a discrimination action in district court pursuant to 49-2-511, MCA.

(7) "Respondent" means any person against whom a complaint is filed.

(8) "Person" means a person as defined in 49-2-101, MCA.

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(1) The purpose of the rules in this subchapter is to set forth the procedures the commission will follow for hearing party objections to the dismissal of complaints under 49-2-511, MCA and appeals of final orders under 49-2-505, MCA.

(2) The commission will construe the provisions of the act, the code, and these rules in a reasonable manner. A principal objective of the act and code is to ensure that there will be no illegal discrimination in Montana.

(3) The commission may suspend, waive or modify these rules for good cause to expedite decision, prevent manifest prejudice to a party, assure a fair hearing, or afford substantial justice.

(1) All documents, pleadings, and papers to be filed shall be eight and one-half inches by eleven inches (8½" x 11") in size, standard quality, opaque, unglazed paper, with a minimum 50% recycled content, of which least 10% shall be postconsumer waste, and in 12-point font or larger, double-spaced, and clearly legible. Exhibits or other documents shall be reproduced in like size unless the original exhibit is required. The commission may require the reproduction of an oversized demonstrative or other exhibit in a size appropriate for the record.

(2) Copies of all submissions filed must be served upon all parties of record, including intervenors or other parties allowed to appear for special purposes, and all submissions must contain or be accompanied by a certificate of service showing proof of the method of service and the date upon which such service was made. Service of copies of submissions upon parties shall be made in accordance with Rule 5 of the Montana Rules of Civil Procedure and may be made by means of first class mail, postage prepaid, unless the commission designates another manner of service.

(1) Any document required or permitted to be filed with the commission may be filed in three ways: hard copy, electronically, or telephonic facsimile (fax). In all instances, a hard copy original must be provided as indicated in (4) and (5).

(2) Electronic filing must take the following form:

(a) The electronic mail address for document filing is [email protected]. Documents to be filed by e-mail must be attached to the e-mail in Portable Document Format (.pdf). Attachments larger than eight megabytes cannot be accepted. Filings may be submitted in multiple attachments if necessary.

(b) Documents may also be filed electronically by storing them on a compact disc and filing that compact disc with the commission, as stated in (5).

(3) For facsimile filing, the number is (406) 443-3234. Documents which are longer than twenty pages, inclusive of attachments and exhibits, may not be filed by fax.

(4) Hard copy filings or filings of compact discs may be mailed to: Human Rights Bureau, Department of Labor and Industry, P.O. Box 1728, Helena, Montana 59624-1728; or delivered by hand to 33 South Last Chance Gulch, Suite 2B, Helena, Montana 59601.

(5) If filing is made by e-mail or fax, a hard copy original of the identical document must be received by the commission not more than five days following the filing. If such original is not received and good cause is not shown, the e-mail or fax filing will be stricken from the record.

(6) A document is filed, no matter how it is transmitted, on the date it is received by the commission, not the date it is mailed. It is the responsibility of the filing party to ensure that documents are timely received by the commission.

(7) Notwithstanding any other rule to the contrary, any party may request to file documents solely in hard copy by filing a motion to that effect with the commission. The commission may grant such request for good cause shown.

(1) In accordance with Rule 6(a) of the Montana Rules of Civil Procedure, in computing any period of time for acts required by any of the commission's rules, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, Sunday, legal holiday, or the department offices are closed on such day. In that event, the period runs until the end of the next day when the department offices are open which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and holidays are excluded in computation.

(2) In accordance with Rule 6(d) of the Montana Rules of Civil Procedure, whenever a party has a right or is required to do some act under any of the commission's rules within a prescribed period after service of a notice or other paper upon the party and service is by mail, three days shall be added to the prescribed period. The date of service is computed from the date on which service is made by mail, as shown by the certificate of service or date of mailing. Service by mail is complete upon mailing.

(3) Except as to dates fixed by statute and not subject to modification, the commission may enlarge the time to perform an act. In accordance with Rule 6(b) of the Montana Rules of Civil Procedure, the time may be enlarged for good cause shown.

(1) The commission shall, at all times, have jurisdiction to determine the jurisdiction of the commission over any particular contested case. In such situations the rules of procedure of the commission shall apply, and questions of jurisdiction may be resolved by rulings and orders based upon the pleadings or after a hearing, as required to suit the circumstances of the case.

(1) A party may disqualify a member of the commission from presiding over any matter governed by these rules only upon an affirmative showing, made in good faith, of personal bias, a lack of independence, disqualification by law or other ground for disqualification allowed by law.

(2) A party seeking to disqualify a member of the commission may do so only upon the filing of a motion which is supported by a sufficient affidavit showing the particular facts and matters which constitute good cause for disqualification under (1). The party must file the motion and affidavit within ten days of service of the notice of objection or appeal.

(3) Following the filing of a motion and affidavit of disqualification and a reasonable period of time for an opposing party to comment upon it, the commission shall either enter an order of recusal or decline the member's disqualification. That order must specify the particular facts and grounds upon which it is based.

(4) The question of disqualification shall be determined by a quorum of the commission, which may include the member of the commission to be disqualified if his or her participation is required to constitute a quorum or decide the matter.

(5) A member of the commission may make an order or give a notice of recusal or self-disqualification at any time.

(1) No member of the commission may participate in or initiate any ex parte communication as defined in (2) on the merits of a matter with any party. A member of the commission may engage in a communication concerning administrative or procedural matters where they are necessary under the circumstances and do not adversely affect the substantial rights of a party.

(2) "Ex parte communication" means the act of a party, any person having an interest in the outcome of a contested case, or any other person not authorized by law, communicating with a member of the commission regarding the merits of any contested case, outside the context of a commission hearing or other publicly noticed meeting. Communications which do not constitute discussions or information regarding an issue of fact or law in a contested case, such as discussions of enlargements of time, scheduling, administrative matters, and/or questions of procedure, do not constitute ex parte communications.

(3) The commission, or a member of the commission, may consult with the department regarding any matter coming before the commission.

(1) A party who is dissatisfied with a department decision to dismiss a complaint may seek commission review of the decision by filing a written objection within 14 days after the issuance of the notice of dismissal. The objection will be considered at the next commission meeting after conclusion of the briefing schedule, issued in accordance with the following:

(a) An objecting party who wishes to file a supporting brief must file and serve the opening brief within twenty-one days after the department decision to dismiss the complaint.

(b) A responding party who wishes to file a response brief must file and serve the response brief within fourteen days of service of the opening brief.

(c) An objecting party who wishes to file a reply brief must file and serve the reply brief within fourteen days of service of the response brief.

(2) Briefs subject to this rule may not exceed ten pages in length and must comply with the formatting requirements set forth in ARM 24.9.111. Any specific exhibits which the party believes are essential to the commission's consideration of the matter must be attached to the party's brief. Briefs must be filed in accordance with ARM 24.9.112.

(3) Requests for oral argument must be made in writing at the time of filing the first brief of each party. If a request for oral argument is timely made, ten minutes for each party will be reserved for oral argument at the commission meeting at which the objection will be considered. The commission may request that the parties present oral argument.

(4) Consideration of the objection will be based upon the written record unless oral argument is requested by a party and authorized by the commission. For the purposes of review of objections to a dismissal of a complaint, the written record is comprised solely of the Final Investigative Report of the department, the objection, the briefing of the parties pursuant to this rule, and any attachments to that briefing.

(5) The commission will review an objection to the Human Rights Bureau's decision to dismiss a complaint under an abuse of discretion standard.

(6) If the commission sustains an objection to the dismissal of a complaint, it will reopen the case by remanding it to the department.

(a) If the complaint has not yet been informally investigated, and not more than 90 days (housing cases) or 120 days (nonhousing cases) have passed since the date of filing, it will be remanded to the Human Rights Bureau for investigation.

(b) If the complaint has been informally investigated, or if more than 90 days (housing cases) or 120 days (nonhousing cases) have passed since the date of filing, it will be remanded to the Office of Administrative Hearings to give notice of a hearing.

(7) If the commission affirms the dismissal of a complaint, it will issue a written order to the parties within 90 days of the hearing on the matter. The charging party has 90 days after receipt of the commission's order affirming the dismissal of a complaint to file the complaint in the appropriate district court.

(1) Following entry of a hearing officer decision that resolves the complaint, pursuant to 49-2-505, MCA, parties shall have the opportunity to file an appeal, present briefs, and present oral argument to the commission as provided in this rule.

(2) A party that wants to appeal shall file a notice of appeal to the commission within 14 days of the issuance of the hearing officer decision. A party requesting review of the transcript must so state in the party's notice of appeal.

(3) All briefing must conform to the commission's formatting requirements set forth in ARM 24.9.111. A brief on appeal of a hearing officer decision may not exceed 20 pages in length.

(4) The standards of review of appeals of hearing officer decisions are as follows:

(a) The commission reviews conclusions of law and interpretations of statutes and administrative rules for correctness. The commission may reject or modify a conclusion of law if it determines that the hearing officer misapplied fact to law or incorrectly interpreted or applied the law.

(b) The commission reviews findings of fact to determine whether substantial evidence exists to support a particular finding. The review must be based upon review of the complete record. While the hearing officer is entitled to some deference in findings of fact, weighing of evidence, and credibility determinations, the commission may reject or modify a finding of fact if it determines that such finding is clearly erroneous or not based upon competent substantial evidence. The commission may additionally reject or modify findings of fact if it determines that the proceedings on which the findings were based did not comply with essential requirements of law.

(c) The commission reviews damage awards to determine if they are clearly erroneous. A party asserting that a damage award is clearly erroneous shall specifically cite the portions of the record supporting that claim. A party asserting an alternative monetary award shall cite the portions of the record which support such alternative calculation. The commission may deny an appeal on the issue of damages if it fails to comply with this subsection.

(d) The commission may grant all relief permitted by 49-2-506, MCA, including full affirmative relief.

(5) The complete record for the purposes of this rule is comprised of all documents cited or referred to in briefing before the commission. If a party intends to challenge any finding of fact of the hearing officer, the complete record additionally includes the transcript of the hearing.

(a) The party citing or referring to a document in its briefing is required to attach as an exhibit to its brief the entirety of such document. If a party fails to attach required documents to its briefing, the commission may deny the appeal.

(b) Documents which may be included in the complete record are those enumerated at 2-4-614, MCA. Failure of a party to submit documents enumerated in that statute constitutes a stipulation by that party that the commission need not review those documents.

(c) Exhibits not admitted at hearing may not be attached to briefs on appeal, unless the failure to admit such exhibit is a reason for appeal. On timely motion by any party, any exhibit improperly attached may be stricken from the appeal.

(6) The briefing schedule before the commission for appeals of hearing officer decisions must conform substantially with the following:

(a) If review of the transcript has been requested, the appellant shall file an original and an electronic version of the transcript with the commission within 28 days of filing the notice of appeal.

(b) The appellant shall file an original and an electronic version of its opening brief within 21 days of the filing of the transcript or, if no review of the transcript has been requested, within 21 days of the filing of the notice of appeal. Failure to file an opening brief may result in summary denial of the appeal sua sponte or on motion of any party.

(c) The appellee shall file an original and an electronic version of its response brief within 14 days of service of the opening brief.

(d) The appellant shall file an original and electronic version of its reply brief, if any, within 14 days of service of the response brief.

(7) The following requirements apply to the preparation of the transcript:

(a) A transcript must be prepared by an impartial person with no affiliation to any party and with no interest in the outcome of the contested case. A transcript must be a verbatim and complete account of all proceedings on the record of the hearing and must be in the form commonly accepted by the courts of record of this state. The preparer of a transcript shall certify that the transcript is a complete and accurate account of the stenographic or electronic recording of the hearing and that the preparer has no affiliation with any party and has no interest in the outcome of the contested case.

(b) Preparation of the transcript is the responsibility of the party requesting review of the transcript. If more than one party requests review of the transcript, all parties requesting the review shall share equally in the cost of the transcript and copies.

(8) Each party is permitted one-half hour of argument before the commission for each appeal. The appellant may reserve a portion of that time for rebuttal. Oral argument may be waived by the parties, except where it is requested by the commission.

(9) When a party has timely filed an appeal of a hearing officer decision and has timely filed a supporting brief, the commission will fix a date to provide the parties an opportunity to present oral argument to the commission. 

(10) The commission shall render a decision which affirms, rejects, modifies, and/or remands the hearing officer decision within 90 days of the hearing of the appeal. The final decision of the commission is the final agency decision.

(1) On the date fixed by the commission for oral argument, a quorum of the commission shall consider objections to dismissals by the Human Rights Bureau and appeals of hearing officer decisions.

(2) Upon motion of the commission, any member of the commission who is absent at the presentation of oral argument may participate in deliberations and the entry of a final decision or order of the commission if he or she, where required, reviews the complete record of the contested case, including a recording or transcript of the oral argument of the parties.

(3) At the time of oral argument, and subject to the rule of the commission chair, any member of the commission may pose questions to a party or his or her representatives.

(4) Following hearing, the chair of the commission, or any member acting in the chair's stead, shall issue the final order of the commission. At that member's discretion, the final order may be referred to the immediately subsequent hearing of the commission. At that time, the commission's review is limited to whether the proposed order complies with the motions made by the commission previously.

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(2) The person alleging discrimination has the burden of proving that the charging party or other aggrieved person is a member of a protected class.

(1) It is unlawful to retaliate against or otherwise discriminate against a person because the person engages in protected activity. A significant adverse act against a person because the person has engaged in protected activity or is associated with or related to a person who has engaged in protected activity is illegal retaliation. "Protected activity" means the exercise of rights under the act or code and may include:

(a) aiding or encouraging others in the exercise of rights under the act or code;

(b) opposing any act or practice made unlawful by the act or code; and

(c) filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing to enforce any provision of the act or code.

(2) Significant adverse acts are those that would dissuade a reasonable person from engaging in a protected activity. This may include the following:

(a) violence or threats of violence, malicious damage to property, coercion, intimidation, harassment, the filing of a factually or legally baseless civil action or criminal complaint, or other interference with the person or property of an individual;

(b) discharge, demotion, denial of promotion, denial of benefits or other material adverse employment action;

(c) expulsion, blacklisting, denial of privileges or access, or other action adversely affecting the availability of goods, services, facilities, or advantages of a public accommodation;

(d) eviction, denial of services or privileges, or other action adversely affecting the availability of housing opportunities; and

(e) denial of credit, financing, insurance, educational, governmental or other services, benefits or opportunities.

(3) When a respondent or agent of a respondent has actual or constructive knowledge that proceedings are or have been pending with the department, with the commission or in court to enforce a provision of the act or code, significant adverse action taken by respondent or the agent of respondent against a charging party or complainant while the proceedings were pending or within six months following the final resolution of the proceedings will create a disputable presumption that the adverse action was in retaliation for protected activity.

(1) Except as provided in 49-2-303 , 49-2-308 and 49-3-201 , MCA, it is unlawful for an employer, agent of an employer, employment agency or labor organization to discriminate against a person in the terms, conditions or privileges of employment because of a person's membership in a protected class.

(2) Terms, conditions or privileges of employment which are subject to the act and code include:

(a) recruitment, advertising and job application procedures;

(b) hiring, promotion, upgrading, award of tenure, transfer, layoff, discipline, discharge, termination of employment, right to return from layoff, and rehiring;

(c) rates of pay or compensation and changes in compensation;

(d) job assignments, job classifications, organizational structures, position descriptions, lines of progression and seniority lists;

(e) leaves of absence, sick leave or any other leave;

(f) fringe benefits available through employment, whether or not administered by the employer;

(g) selection and financial support for training, including apprenticeships, professional meetings, conferences or other related activities;

(h) social and recreational activities sponsored by an employer, agent of an employer, employment agency or labor organization; and

(i) any other term, condition or privilege of employment.

(3) Examples of practices which may constitute unlawful employment discrimination include the following:

(a) denying, qualifying, or limiting a term, condition, or privilege of employment because of a person's membership in a protected class or protected activity;

(b) subjecting a person to harassment in the workplace because of the person's membership in a protected class or protected activity;

(c) failing to make reasonable accommodation as further explained in ARM 24.9.606 and 24.9.608;

(d) segregating or classifying a person in a way that adversely affects employment status or opportunities because of membership in a protected class;

(e) participating in a contract or other arrangement (including an arrangement with an organization providing fringe benefits or an organization providing training or apprenticeship programs) that has the effect of discriminating against persons in the terms, conditions or privileges of employment because of membership in a protected class;

(f) using standards, criteria or methods of administering or managing employment opportunities which discriminate in the terms, conditions or privileges of employment because of membership in a protected class or which perpetuate the denial of equal employment opportunities because of membership in a protected class;

(g) using or administering qualification standards, employment tests or other selection criteria that screen out or tend to screen out members of a protected class; and

(h) discriminating against a person in the terms, conditions or privileges of employment because the person has a relationship with or otherwise associates with a member of a protected class.

(2) The commission construes the exceptions contained in this rule strictly, against allowing the exception.

(3) The commission construes the statutory exception permitting distinctions based on age, marital status and sex in accordance with the legal standards for "bona fide occupational qualifications" under section 703 (e) (1) of the Civil Rights Act of 1964 (42 U.S.C. 2000-2 (e) (1) ) and section 4(f) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(f) ) .

(4) The commission construes the statutory exception permitting distinctions based on physical or mental disability in accordance with the legal standards for determining whether a person is a "qualified individual with a disability" under section 101(8) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111(8) ) .

(5) These exceptions are affirmative defenses. A respondent claiming an exception has the burden of proof on the issue.

(1) It is an unlawful discriminatory practice for an employer, agent of an employer, employment agency, or labor organization to:

(a) fail to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee, employment applicant, or union member with a disability; or

(b) deny equal employment opportunities to a person with a physical or mental disability because of the need to make a reasonable accommodation.

(2) A person with a physical or mental disability is qualified to hold an employment position if the person can perform the essential functions of the job with or without a reasonable accommodation for the person's physical or mental disability.

(3) "Reasonable accommodation" to a person with a physical or mental disability for the purposes of enabling the person to perform the essential functions of an employment position may include:

(a) making existing facilities used by employees readily accessible to and usable by individuals with physical or mental disabilities; and

(b) job restructuring, part-time or modified work schedules, reassignment to vacant positions which the employee is qualified to hold, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations or training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with physical or mental disabilities.

(4) An accommodation to a person with a physical or mental disability for the purpose of enabling the person to perform the essential functions of an employment position is reasonable unless it would impose an undue hardship upon the employer.

(5) For purposes of determining whether an accommodation to a physical or mental disability is reasonable, "undue hardship" means an action requiring significant difficulty or extraordinary cost when considered in light of:

(a) the nature and expense of the accommodation needed;

(b) the overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of persons employed at the facility, the effect on expenses and resources of the facility, and other impacts of the accommodation on the operation of the facility;

(c) the overall financial resources of the business, the overall size of the business of the employer with respect to the number of employees, and the number and type and location of the facilities of the employer; and

(d) the type of operation or operations of the employer, including composition, structure, and functions of the work force of the employer, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the employer.

(6) An accommodation to a person with a physical or mental disability for the purpose of enabling the person to perform the essential functions of an employment position is not reasonable if it would endanger the health or safety of any person.

(7) If an employer defends an adverse employment action against a person with a physical or mental disability on the grounds that an accommodation would endanger the health or safety of a person, the employer's failure to independently assess whether the accommodation would create a reasonable probability of substantial harm will create a disputable presumption that the employer's justification is a pretext for discrimination on the basis of disability.

(2) Use of an employment application form or process which requires a medical examination or makes an inquiry of a job applicant for the purpose of determining whether a person has a physical or mental disability or to determine the nature or severity of a physical or mental disability prior to an offer of employment constitutes a violation of 49-2-303 (1) (c) , MCA and is evidence of a violation of 49-2-303 (1) (a) , MCA unless the form or process complies with the requirements of this rule.

(3) An employer, agent of an employer, employment agency or labor organization may make pre-employment inquiries into the ability of an applicant to perform job-related functions.

(4) An employer, agent of an employer, employment agency or labor organization may require a medical examination of a person after an offer of employment has been made and prior to the commencement of the employment duties and may condition the offer of employment on the results of the examination if:

(a) all entering employees or union members in the same job category are subjected to the same examination regardless of disability;

(b) information obtained regarding the medical condition or history of a person is treated as a confidential medical record; and

(c) information obtained is collected and maintained in accordance with the requirements of the Americans with Disabilities Act (ADA) where the employer, employment agency or labor organization is subject to ADA requirements.

(5) An employer, agent of an employer, or labor organization may conduct voluntary medical examinations, including voluntary medical histories, that are part of a bona fide employee or union health program. Information obtained pursuant to a bona fide employee or union health program is a confidential medical record and subject to the same confidentiality requirements and restrictions on disclosure stated in (4) .

(6) An employer, after a conditional offer of employment to a prospective employee, may inquire whether the prospective employee is certified or eligible to be certified as vocationally disabled for the purposes of the subsequent injury fund, pursuant to Title 39, chapter 71, part 9 of the Montana Workers' Compensation Act.

(2) The term religion includes all aspects of religious observance, practice and belief.

(3) For purposes of providing equal employment opportunities, an employer has a duty to accommodate an employee's religion unless to do so would cause a more than de minimis hardship on the conduct of the business.

(a) An employee whose religion conflicts with an employment requirement has a duty to inform the employer of the conflict in a timely manner.

(b) Once informed of a religion based conflict, an employer has a duty to initiate good faith efforts to accommodate the conflict. An employer can demonstrate that an accommodation to an employee's religious belief or practice would cause a more than de minimis hardship with proof that the accommodation would require a significant cost to the business, would violate contract obligations which cannot be reconciled, or would otherwise cause a more than de minimis hardship to the employer.

(c) The employer and the employee have a mutual obligation to engage in bilateral cooperation in a search for a reasonable resolution of conflicts which may arise between an employer's business and an employee's religion.

(4) Determining whether an accommodation can be made and whether a more than de minimis hardship would occur for purposes of the provisions of the act or code prohibiting religious discrimination in employment must be made on a case by case basis.

(1) Except as provided in 49-2-304 , MCA, it is unlawful for an owner, lessee, manager, agent or employee of a public accommodation to deny equal access to services, goods, facilities, advantages or privileges to a person because of membership in a protected class.

(2) Unlawful discrimination in a public accommodation may include the following:

(a) imposing or applying qualification standards, admittance tests or other selection criteria that screen out or tend to screen out a person or persons who are members of a protected class unless the standard, test or other selection criteria can be shown to be necessary for the provision of the goods, services, facilities, advantages or privileges being offered;

(b) denying equal access to the goods, services, facilities, advantages or privileges of a public accommodation to a person because of the person's relationship or association with a member of a protected class; or

(c) subjecting a member of the public or patron to harassment in the public accommodation because of the person's membership in a protected class or protected activity.

(3) Unlawful discrimination against a person with a disability in a public accommodation may include:

(a) failing to make reasonable modifications in policies, practices or procedures when the modifications are necessary to afford the goods, services, facilities, advantages or privileges to persons with disabilities unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of its goods, services, facilities, advantages or privileges;

(b) failing to take necessary action to ensure that a person with a disability is not excluded, denied services, segregated or otherwise denied equal access because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, advantages or privileges being offered or would result in an unreasonable expense or undue burden after considering the circumstances of the public accommodation;

(c) failing to remove architectural barriers and communication barriers in existing facilities that are structural in nature and deny equal access to persons with disabilities when the removal is readily achievable; or

(d) failing to make goods, services, facilities, advantages and privileges available through alternative methods if removal of barriers that deny equal access to persons with disabilities is not readily achievable.

(2) A prima facie case of discrimination or retaliation based on disparate treatment means evidence from which the trier of fact can infer that adverse action against the charging party was motivated by respondent's consideration of charging party's membership in a protected class, protected activity, or association with or relation to a person who is a member of a protected class or who has engaged in protected activity.

(a) The elements of a prima facie case will vary according to the type of charge and the alleged violation, but generally consist of proof:

(i) That charging party is a member of a protected class or engaged in protected activity;

(ii) That charging party sought and was qualified for an employment, housing, service, credit or other opportunity made available by the respondent; and

(iii) That charging party was denied the opportunity, or otherwise subjected to adverse action by respondent in circumstances raising a reasonable inference that charging party was treated differently because of membership in a protected class or because of protected activity.

(b) Examples of evidence establishing a reasonable inference that charging party was treated differently because of membership in a protected class or because of protected activity include:

(i) proof that respondent continued to make the employment, housing, service, credit, or other opportunity available to persons who are not members of the same protected class as charging party;

(ii) proof that similarly situated persons outside the protected class were treated more favorably;

(iii) proof that there was a close proximity in time between protected activity of the charging party and adverse action by the respondent;

(iv) proof that respondent intended to discriminate against persons of the protected class; or

(v) other proof that there is a causal connection between adverse action by the respondent and the charging party's membership in a protected class or protected activity.

(3) Once a charging party establishes a prima facie case of unlawful discrimination or illegal retaliation based on circumstantial evidence of disparate treatment, the respondent must produce evidence of a legitimate, nondiscriminatory reason for the challenged action.

(4) If a respondent produces evidence of a legitimate, nondiscriminatory reason for a challenged action in response to a prima facie case, the charging party must demonstrate that the reason offered by the respondent is a pretext for unlawful discrimination or illegal retaliation. The charging party can prove pretext with evidence that the respondent's acts were more likely based on an unlawful motive or indirectly with evidence that the explanation for the challenged action is not credible and is unworthy of belief.

(5) If a charging party has established a prima facie case with direct evidence of unlawful discrimination or illegal retaliation, the respondent must prove by a preponderance of the evidence that an unlawful motive played no role in the challenged action or that the direct evidence of discrimination is not credible and is unworthy of belief.

(2) Evidence of a respondent's intent to discriminate against members of a protected class is not required to establish a prima facie case of unlawful discriminatory practice based on disparate impact.

(3) Once a charging party establishes a prima facie case of unlawful discrimination based on a charge of disparate impact, the respondent must produce evidence of a legitimate business justification for the challenged practices or policies. Proof of a legitimate business justification requires admissible evidence that the challenged practices or policies are job-related and consistent with business necessity.

(4) If a respondent produces admissible evidence of a legitimate business justification for a challenged business practice or policy, the charging party must prove that the articulated justification offered by the respondent is a pretext for unlawful discrimination. The charging party may prove pretext directly with evidence that an unlawful motive more likely motivated the respondent, or indirectly with evidence that the articulated business justification is not worthy of belief or that there are other practices or policies available which are equally effective in serving the legitimate business interests of the respondent which do not have similar discriminatory effects upon members of a protected class.

(1) Direct threat means a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation. 

(2) An employer that takes an adverse action against a person with a disability on the grounds that the person with a disability poses a direct threat shall perform an independent assessment of the risk of harm before taking the adverse employment action in question.

(3) A determination that an individual poses a direct threat must be based on an individualized assessment of the individual's present ability safely to perform the essential functions of the job. The assessment must be based on an evaluation of the employee, taking into account all relevant information regarding work and medical history. Assessment of medical history must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

(a) the duration of the risk;

(b) the nature and severity of the potential harm;

(c) the likelihood that the potential harm will occur; and

(d) the imminence of the potential harm.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(a) The number of employees who are white (not of hispanic origin) , black (not of hispanic origin) , hispanic, Asian or Pacific Islander, American Indian or Alaskan Native in each job category;

(b) The number of males and females in each racial group and job category; and

(c) The age of each employee in each job category.

(2) Records which fulfill the requirements of the U.S. equal employment opportunity commission recordkeeping requirements are sufficient to meet the requirements of this rule.

(3) Information about racial or ethnic identity may be acquired by visual survey of the work force and, if at all possible, should not be by direct inquiry. Such information shall be kept separately from other personnel records and shall be maintained as total numbers without identification of individuals.

(4) All personnel records made or kept by an employer, including, but not necessarily limited to, application forms and other records related to hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation and selection for training or apprenticeship, shall be preserved for 2 years from the date the record is made or from the date of the personnel action involved, whichever occurs later.

(5) If a discrimination complaint is filed, the respondent shall preserve all personnel records relevant to the complaint until final disposition of the complaint. Personnel records relevant to a complaint include personnel records relating to the complainant and to all other employees holding positions similar to that held or sought by the complainant and application forms or test papers completed by an unsuccessful applicant and all other candidates for the same position.

(6) Labor organizations shall preserve membership or referral records, including applications for membership or referral for 2 years from the date the records are made. If a discrimination complaint is filed, a labor organization shall preserve all records relevant to the complaint until final disposition of the complaint.

(2) "Auxiliary services" for students includes but is not limited to: health care, food services, playing fields, public accommodations on campus, speech therapy, remedial programs, mental health programs, and special programs.

(3) "Educational institution" means a public or private institution and includes an academy; college; elementary or secondary school; extension course; kindergarten; nursery; school system; university; business, nursing, professional, secretarial, technical or vocational school; or agent of an educational institution.

(4) "Extracurricular activity" includes school-sponsored or supported clubs, teams, or activities of general or specific interest not part of classroom instruction.

(5) "Housing accommodation" means a building or portion of a building whether constructed or to be constructed, which is or will be used as the sleeping quarters of its occupants.

(6) "Person" means one or more individuals, and includes applicants for admission as well as students.

(7) "Physical education activities involving bodily contact" means boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.

(8) "Public accommodation" means a place which is operated by an educational institution as defined in section 49-2-101 (17) , MCA.

(9) "Sexual harassment" means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

(10) "Sexual intimidation" means any unreasonable behavior, verbal or nonverbal, which has the effect of subjecting members of either sex to humiliation, embarrassment or discomfort because of their gender.

(11) "Student" means a person who has gained admission and is currently engaged in the program of an educational institution.

(2) Because of the potential adverse impact upon female students of restrictions related to pregnancy or parental status, no student shall be discriminated against because of pregnancy or actual or potential parental status unless such action is based upon reasonable grounds.

(a) Unless an exception is based on reasonable grounds, pregnancy shall be treated as any other temporary disability.

(b) Unless an exception is based on reasonable grounds, pregnancy or parenthood shall not be considered cause for dismissal or exclusion from any program or activity.

(c) Participation in special programs provided for pregnant students or students who are parents shall be at the student's option.

(d) Educational institutions shall eliminate administrative and programmatic barriers to school attendance and school completion by pregnant students or students who are parents.

(e) Unless an exception is based on reasonable grounds, no student shall be discriminated against because of his or her actual or potential marital status.

(3) No student shall be subjected to sexual intimidation or harassment by any school employee, or by the effect of any school policy or practice when any employee or agent of the educational institution knew or reasonably should have known of the activity, policy or practice. No student shall be subject to sexual harassment or sexual intimidation by another student on school-owned or controlled property or at any school sponsored or supervised functions or activities when any agent or employee of the educational institution knew or reasonably should have known of the activity.

(2) In determining whether a person has satisfied any policy or criterion for admission, or in making any offer of admission, an educational institution shall not:

(a) give preference to one person over another on the basis of sex by ranking applicants separately on such basis, or otherwise;

(b) apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or

(c) otherwise treat one individual differently from another on the basis of sex.

(3) An educational institution shall not administer or require any test or apply any other criterion as the sole basis for admission which has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question. An exception to this rule may exist if it can be shown that alternative tests or criteria which do not have such a disproportionately adverse effect are unavailable.

(4) In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, an educational institution shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice which so discriminates or excludes.

(5) An educational institution may make pre-admission inquiry as to the sex of an applicant for admission, but only if the inquiry is made equally of applicants of both sexes and if the results of the inquiry are not used in connection with discrimination prohibited by this part. Information relating to the sex of an individual that is obtained by the educational institution for statistical purposes may not be used in any admission determination.

(1) Unless an exception is based on reasonable grounds, an educational institution shall not provide any course or otherwise carry out any of its educational programs or activities separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music and adult education courses.

(2) This rule does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.

(3) This rule does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball and other sports, the purpose or major activity of which involves bodily contact.

(4) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the educational institution shall use appropriate standards which do not have such effect.

(5) Portions of classes in elementary and secondary schools which deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.

(6) Educational institutions may make requirements based on vocal range or quality which may result in a chorus or choruses of one or predominantly one sex.

(1) Textbooks and instructional materials are part of an educational program and as such are considered to be part of the terms and conditions or privileges provided by an educational institution under the Montana Human Rights Act and the Governmental Code of Fair Practices. Nothing in these rules shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or instructional materials. However, the commission encourages educational institutions to utilize textbooks and instructional materials that portray males and females in a wide variety of occupational, emotional and behavioral situations and in the full range of their human potential.

(1) Unless based on reasonable grounds, no person, on the basis of sex, shall be denied equality of opportunity to participate in extracurricular activities and athletics sponsored by an educational institution.

(2) In determining whether equality of opportunity is available, the factors to be considered, among others, are:

(a) whether the selection of sports and levels of competition effectively accommodates the interests and abilities of both sexes;

(b) the provision of equipment, supplies and services;

(c) scheduling of games and practice times;

(d) travel and per diem allowances;

(e) opportunity to receive coaching and academic tutoring;

(f) qualifications, assignment and compensation of coaches, officials, and tutors;

(g) provision of locker rooms, practice and competitive facilities;

(h) provision of medical and training facilities and services;

(i) provision of housing and dining facilities and services, and;

(j) publicity.

(2) To the extent that an educational institution awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.

(1) Unless an exception is based on reasonable grounds, an educational institution shall not, on the basis of sex, apply different rules or regulations, impose different fees or requirements or different services or benefits related to housing and auxiliary services.

(2) An educational institution may provide separate housing and auxiliary services on the basis of sex so long as the housing and auxiliary services provided to students of one sex, compared to that provided to students of the other sex, be, as a whole, and to the extent reasonably attainable by the institution, proportionate in quantity and comparable in quality and cost to the student. Students shall be provided equal access and equal treatment.

(2) An educational institution that makes school facilities available to or otherwise assists an agency, person, or organization known to engage in unlawful employment discrimination furthers and sanctions the discriminatory practice.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) "Disability as a result of pregnancy" includes any condition certifiable by a medical doctor as disabling, whether the condition arises as a result of the normal course of pregnancy, or as a result of abnormal medical conditions which occur in the course of a pregnancy, and may cover the time period beginning with conception through termination of gestation and a reasonable period for recovery therefrom.

(2) "Maternity leave" means any leave of absence granted to or required of an employee because of such employee's disability due to pregnancy.

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(1) The term "insurer" as used in this subchapter means any financial institution or person, as those terms are defined in section 49-2-101, MCA, that issues, operates, sells or otherwise provides any type of insurance policy, plan, or coverage or any pension or retirement plan, program, or coverage to another person or persons, except that an employer or organization which provides to its employees or members a group insurance policy, plan, or coverage or pension or retirement plan, program, or coverage purchased from or provided by an insurer is not an insurer.

(2) Factors which an insurer may take into account to determine rates or premiums for motor vehicle liability and property coverage include, but are not limited to:

(a) The age of the driver.

(b) The length of driving experience.

(c) The number of years licensed to operate a motor vehicle.

(d) A determination of which driver, among several insured individuals, is the primary driver of a covered vehicle, based upon the proportionate use of each vehicle insured under the policy by individual drivers insured or to be insured under the policy.

(e) Average number of miles driven over a period of time.

(f) Type of use, such as business, farm, or pleasure use.

(g) Vehicle characteristics, features, and options such as engine displacement, ability of vehicle and its equipment to protect passengers from injury, vehicle make and model, and design characteristics related to damagability of the vehicle.

(h) Commuting mileage over a period of time.

(i) The number of cars insured or number of licensed operators in the household, without regard to the sex or marital status of the licensed operators. An insurer may not utilize a policy of establishing insurance rates for an individual based upon the driving record of a spouse who is a licensed operator but not a primary driver of the vehicle to be insured unless the policy is applied in the same manner to households of individuals not married to each other.

(j) The amount of insurance.

(k) The anticipated cost of vehicle repairs or replacement, which may be measured by age, price, cost, or value of the insured automobile, and other related factors.

(l) Geographic location.

(m) The accident record ofthe insured, including accidents for which the insured, although not cited, was substantially at fault.

(n) The driving record of the insured, including citations.

(2) Factors which an insurer may take into account to determine rates or premiums for a life, disability, or health insurance policy, plan, program, or coverage, include but are not limited to age, weight, general health, personal habits such as smoking or other use of tobacco, consumption of alcoholic beverages, and the hazardous nature of work or recreation engaged in by the insured.

(2) Any term, payment, or benefit of an insurance policy, plan, or coverage or pension or retirement plan, program or coverage in effect prior to October 1, 1985, may be exercised in accordance with the terms of that policy, plan, program, or coverage. Options to increase or decrease coverage, annual rate adjustments and settlement options in life insurance policies are examples of terms which if included in a policy, plan, program or coverage in effect prior to October 1, 1985, may be exercised without regard to 49-2-309 , MCA or these rules.

(3) In determining if a policy, plan, program, or coverage was in effect prior to October 1, 1985, the primary consideration will be whether a new contract is formed on or after October 1, 1985, or whether a pre-October 1 contract is continued after that date.

(4) Section 49-2-309 ; MCA, and these rules, are applicable to any agreement whereby an insurer and an insured agree to an extension or continuation of a pre-October 1, 1985 insurance policy, plan, or coverage or pension or retirement plan, program, or coverage when no consideration was given in the pre-October 1, contract for the right to extend or continue upon the same terms. The fact that the contract formed by extension or continuation is identical to the pre-October 1, 1985 contract is not material if no consideration for the right to extend or continue the pre-October 1 terms was given.

(5) Section 49-2-309 , MCA, and these rules do not apply to any insurance policy, plan, or coverage or pension or retirement plan, program or coverage issued to or provided to a person who resided in a state other than Montana at the time the policy, plan, program or coverage became effective.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(a) the inquiry is required for implementation of a bona fide lawful affirmative action plan,

(b) the inquiry is required by court ordered or other government reporting or record-keeping requirements or

(c) in the case of an inquiry concerning age, physical or mental disability, marital status or sex, the reasonable demands of the position (bona fide occupational qualifications) require an age, physical or mental disability, marital status or sex distinction.

(2) Whether or not any pre-employment inquiry is actually unlawful depends upon whether the inquiry was intended to be used or was used to unlawfully discriminate. The following preemployment inquiries may raise a suspicion that the employer intends to use the information to unlawfully discriminate and, therefore, should not be asked at any time during the hiring process, including, but not limited to, on application forms and during interviews. The list contains suspect pre-employment inquiries followed, when appropriate, by examples of lawful inquiries regarding the same information.

(a) General inquiry regarding race, color, national origin, religion, creed, physical or mental disability, age, sex or marital status and, in the case of governmental employers only, political beliefs.

(b) Inquiry regarding original name. It is lawful to inquire regarding change of name for purposes of checking employment and education records.

(c) Inquiry regarding residency which requests information indicating birthplace or place of foreign citizenship, former or present. It is lawful to inquire regarding present address, previous address in the U.S. and duration of residency in a particular city, county or state.

(d) When age is a bona fide occupational qualification, an inquiry which requires that age be proven by birth certificate or baptismal record. When age is a bona fide occupational qualification, it is lawful to require that age be proven by a record which does not indicate national origin, ancestry or religion.

(e) Inquiry regarding skin, hair or eye color.

(f) Requirement of a photograph or a request for one, at the applicant's option.

(g) Inquiry regarding military experience outside the U.S. armed forces.

(h) Inquiry regarding criminal arrests. It is lawful to inquire regarding criminal convictions.

(i) Inquiry regarding native language, or the manner in which a foreign language was acquired. It is lawful to inquire regarding foreign languages spoken and degree of fluency.

(j) General inquiry regarding membership in organizations. It is lawful to inquire regarding membership in organizations the names of which do not indicate race, color, national origin, religion, creed, physical or mental disability, age, sex or marital status. Additionally, government employers should not inquire regarding membership in organizations the names of which indicate political beliefs.

(k) Inquiry regarding names of relatives.

(l) Inquiry regarding garnishment record.

(m) General inquiry regarding physical or mental condition. It is lawful to make necessary and job-related inquiries regarding specific physical or mental conditions required by the reasonable demands of the position.

(n) Inquiry regarding pregnancy or childbearing plans.

(o) Inquiry of applicants of only one sex regarding childcare arrangements.

(p) Inquiry regarding citizenship.

(q) Inquiry regarding height and weight.

(3) Information necessary for tax, insurance, social security, compliance with garnishment or immigration laws or other legitimate business purposes may be obtained after employment.

(1) The human rights commission hereby affirms its adoption of the Guidelines on Sex Discrimination promulgated by the United States equal employment opportunity commission, as last revised as of July 1, 1998. The guidelines are codified as Title 29 CFR, chapter XIV, part 1604, including the appendix. A copy of the guidelines may be obtained from the human rights bureau, department of labor and industry.

(1) The human rights commission hereby affirms its adoption of the Affirmative Action Guidelines promulgated by the United States equal employment opportunity commission as last revised as of July 1, 1998. The guidelines are codified as Title 29 CFR, chapter XIV, part 1608. A copy of the guidelines may be obtained from the human rights bureau, department of labor and industry.

(a) A parent or another person having legal custody of the individual; or

(b) The designee of a parent, other person or entity having custody, with the written permission of the parent, other person or entity.

(2) "Familial status" - The protections afforded against discrimination on the basis of familial status shall also apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

(3) "Housing for older persons" - The determination as to whether housing under any state or federal program is specifically designed and operated to assist elderly persons shall be made by the department, commission or the United States department of housing and urban development.

(2) Lawful age or disability discrimination in housing under 49-2-403 , MCA based upon capacity to make or be bound by contracts or other obligations must be legally justified by current legal standards regarding capacity to make or be bound by contracts.

(3) Any person or entity asserting entitlement to an exemption under 49-2-403 , MCA has the burden of proving justification for discrimination.

This rule has been repealed.

This rule has been repealed.

(2) Conciliation agreements shall be made public unless the charging party and the respondent otherwise agree and the department or commission determines that the agreement involves a privacy interest entitled to protection by law.

This rule has been repealed.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been repealed.