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EEO - Discrimination: Arizona

EEO - Discrimination requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Paige A. Martin and Daniel Press, Kutak Rock LLP

Summary

Discrimination Under the Arizona Civil Rights Act

The Arizona Civil Rights Act (ACRA) prohibits discrimination against employees and job applicants. Arizona law prohibits employers from discriminating against their employees based on the following characteristics:

  • Race;
  • Color;
  • Religion;
  • Sex/Gender (including pregnancy and maternity);
  • Age (40 and older);
  • Genetic test results;
  • National origin; and
  • Disability.

+Ariz. Rev. Stat. § 41-1463.

Covered Employers

Arizona's antidiscrimination provisions, as codified in the ACRA, only apply to the following:

  • For all types of claims, all Arizona employers who have 15 or more employees working at least 20 weeks during the year;
  • For sexual harassment claims, all employers with one or more employees; and
  • In special situations relating to unions and employment agencies.

+Ariz. Rev. Stat. § 41-1461; +Ariz. Rev. Stat. § 41-1463.

Localities including Phoenix, Tempe and Tucson have requirements pertaining to discrimination.See Local Requirements.

Prohibited Actions

All covered employers are prohibited by the ACRA from taking the following actions:

  • Failing or refusing to hire someone because of a protected characteristic;
  • Discriminating on the basis of a protected characteristic against any individual with respect to their compensation, terms, conditions, or privileges of employment;
  • On the basis of a protected characteristic, limiting, segregating or classifying employees in any way that would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect an individual's status as an employee; or
  • Failing to hire, discharging or otherwise discriminating against any individual based on the results of a genetic test.

All employers, unions, and other organizations that control job-training programs are prohibited from discriminating on the basis of protected characteristics.

Arizona employers may not post notices that indicate their preference for employees who possess certain protected characteristics, unless those characteristics are a bona fide employment qualification.

+Ariz. Rev. Stat. § 41-1463; +Ariz. Rev. Stat. § 41-1464.

Defenses

Bona fide Seniority or Merit System

Employers may apply different compensation standards, terms, conditions or privileges of employment under a bona fide seniority or merit system. The system measures compensation based on quality or quantity of production, or if employees work in different locations, as long as the differences are not based on intentional discrimination because of race, color, religion, sex, or national origin. +Ariz. Rev. Stat. § 41-1463.

Ability Test

Employers may give ability tests, and may use the results of such professionally developed ability test if the test, its administration or action based upon the results is not designed, intended, or used to discriminate based on race, color, religion, sex or national origin. +Ariz. Rev. Stat. § 41-1463.

Bona Fide Occupational Qualification

Arizona employers may make hiring and employee classification decisions based on a protected characteristic if that characteristic is both a bona fide qualification and necessary to the normal operation of a business. +Ariz. Rev. Stat. § 41-1463.

Other Permissible Distinctions

Despite any other antidiscrimination provisions, Arizona law allows employers to make the following distinctions among their employees:

  • Discriminate against individuals who are either members of the Communist Party of the United States or a communist-front organization, as defined by the Subversive Activities Control Act of 1950;
  • Use and act upon the results of any professionally developed test; and
  • Make gender distinctions, if such distinctions are authorized by federal law.

+Ariz. Rev. Stat. § 41-1463.

Required Notices

All Arizona employers, unions and employment agencies must post, in conspicuous places, all notices prepared by the Civil Rights Division of the Arizona Attorney General's Office. +Ariz. Rev. Stat. § 41-1483. See Employee Management > Employee Communications: Arizona.

Additional Restrictions on Specific Types of Employers

Employment Agencies

The ACRA places additional restrictions on all employment agencies, prohibiting them from:

  • Failing to refer or refusing to refer someone for employment because of a protected characteristic;
  • Classifying or referring individuals for employment on the basis of any protected characteristic; and
  • Otherwise discriminating against someone because of a protected characteristic.

Unions

Unions are prohibited from:

  • Excluding, expelling, or otherwise discriminating against individuals based on protected characteristics;
  • Limiting, segregating, or classifying members or applicants, based on protected characteristics, in ways that would limit their employment prospects or status as an employee; and
  • Causing or trying to cause an employer to violate the ACRA.

+Ariz. Rev. Stat. § 41-1463.

Protected Classes Under Arizona Law

Disability

Arizona employers, unions, and employment agencies are prohibited from discriminating against otherwise qualified individuals who suffer from a disability and may need to provide reasonable accommodations.

Discrimination refers to an employer's:

  • Contracts and other relationships;
  • Rules, standards, or administrative methods;
  • Hiring practices and tests; and
  • Compensation schemes.

Employers can use hiring criteria that screen out individuals with disabilities only if the disability in question is both job-related and consistent with business necessity. Employers can require individuals with disabilities to not pose a direct threat to other employees' health or safety.

Practical Example

A truck driving company may screen out blind or paralyzed applicants, as sight and use of one's legs are required to drive a truck.

Medical Examinations

Arizona law restricts the ability of employers to inquire into both current and prospective employees' medical status or require them to undergo medical examinations. See Employee Management > Employee Privacy: Arizona.

Age

Employees age 40 or older may not be discriminated against due to their age.

+Ariz. Rev. Stat. § 41-1465.

Seniority Systems and Benefit Plans

Employers may maintain a seniority system or benefit plan. Neither may require retirement at a certain age, nor may they be used as a way to discriminate on the basis of age or another protected characteristic. +Ariz. Rev. Stat. § 41-1463.

Compulsory Retirement Provisions

Compulsory retirement provisions are acceptable if:

  • The age specified is 65;
  • For the two years before retirement the individual was employed in an executive or policy making position; and
  • The employee is entitled to a vested annual retirement benefit of at least $40,000.

+Ariz. Rev. Stat. § 41-1463.

Religion

Religious schools may have a policy of only hiring employees of a certain religion. +Ariz. Rev. Stat. § 41-1463.

Religious corporations, associations, educational institutions or societies may choose to hire or not hire an individual based on that individual being a part of a particular religion to perform work that will carry on the activities of the religious organization or entity. +Ariz. Rev. Stat. § 41-1462.

National Origin

Employers may refuse to hire individuals who have not met the federal requirements for national-security related jobs. Further, businesses on or near Indian reservations may give preferential treatment to Indians and other reservation residents. +Ariz. Rev. Stat. § 41-1463.

Sex

Sexual Harassment

Arizona recognizes multiple types of harassment in the workplace, including the following:

  • Quid pro quo;
  • Hostile work environment; and
  • Harassment against any of the protected classes.

Quid pro quo harassment occurs when an individual in a supervisory position conditions an employee's benefits, pay, or promotions on sexual favors. Arizona law prohibits this type of harassment.

Hostile work environment harassment occurs when an employee is subjected by a supervisor or co-employee to verbal or physical gestures or abuse, or other behavior that creates a hostile work environment. Arizona law prohibits this type of harassment. See State, Dept. of Admin. v. Shallock, +189 Ariz. 250 (Ariz. 1997).

Arizona employers may not harass employees based on race, age, color, national origin, sex, religion or disability. +Ariz. Rev. Stat. § 41-1463; +Ariz. Rev. Stat. § 41-1465.

Pregnancy

Arizona follows federal law, which treats pregnancy as a protected class under the Pregnancy Discrimination Act (PDA), Title VII and the Family Medical Leave Act (FMLA). Discrimination based on pregnancy and maternity is considered a form of sex discrimination under Arizona law. Under the FMLA, employers must provide 12 weeks of unpaid maternity leave to eligible employees. To be eligible, the employee must have been employed for at least twelve months, working at least 1,250 hours, the employer must have at least fifty employees.

Under the PDA, pregnant employees may not be discriminated against due to their status. After returning from maternity leave, the same or equal job must be available to the employee. An employer who is unaware of the pregnancy status of an employee may not be liable for discrimination based on pregnancy status.

State employees in Arizona may transfer accumulated leave time to another employee in the same agency, or to a family member at another agency when an employee has an extended disability due to pregnancy causing seriously incapacitating and extended illness or injury. +Ariz. Rev. Stat. § 41-783.

State full-time employees may be granted sick leave due to disability, injury or illness caused by pregnancy or childbirth. Eligible employees may take sick leave up to forty hours per year. Sick leave accumulates at eight hours per month. +Ariz. Admin. Code R2-5-404.

Sexual Orientation

Arizona prohibits sexual orientation in public employment only by executive order.

On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.

Reasonable Accommodations

Reasonable Accommodations for Individuals with Disabilities

Arizona employers, unions, and employment agencies generally must make reasonable accommodations for current and prospective disabled employees, including how they administer employment-related tests.

An employer is not subject to making such accommodations if:

  • Doing so would impose an undue hardship; or
  • The individual's disability neither substantially limits one of his or her major life activities nor is there a record of it doing so.

+Ariz. Rev. Stat. § 41-1463.

Religious Accommodations

An employer may need to accommodate an employee's religious belief or practice. An employer may avoid liability for discriminating against an employee based on religion if the employer can demonstrate inability to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the business. Undue hardship includes the nature and cost of accommodations, overall financial resources of the employer, size and location, and the general composition and the workforce. +Ariz. Rev. Stat. § 41-1461.

Establishing a Claim of Discrimination

Employees must be a member in a protected class, and must have been adversely affected or harmed by the discrimination to establish a claim of discrimination. The Civil Rights Division must make a determination of reasonable cause to believe an unlawful employment practice occurred or is occurring, or the claim will be dismissed. +Ariz. Rev. Stat. § 41-1481(B) ; +Ariz. Admin. Code R10-3-206(M) ; +Ariz. Admin. Code R10-3-207(A).

Liability

Employer's Vicarious Liability for Acts of Employees and Supervisors

Employers may be liable for acts of an employee if the employer ratifies the employee's conduct. Clear evidence of the employer's knowledge and approval of the employee's conduct must be shown. See Smith v. American Express Travel Related Serv. Co., +179 Ariz. 136 (App. 1994).

In certain situations, an employer may be vicariously liable for acts committed by its employees, especially if the employee was acting within the scope of his or her employment and trying to benefit the employer. See State, Dept. of Admin. v. Shallock, +189 Ariz. 250 (Ariz. 1997).

Individual employees and supervisors may be named in a lawsuit, and may be found liable for their own individual acts. Liability may be based on case specific facts, and allegations may include intentional interference with contractual relations, intentional infliction of emotional distress, invasion of privacy, defamation, or assault and battery. Employees, director or officers may have a right to indemnification based on statute, bylaws, articles of incorporation, or contract. +Ariz. Rev. Stat. § 10-850 et seq.; See Model Business Corporation Act, 4th Ed. § 8.50, annotated (2008).

Individual Liability of Employees for Discriminatory Acts

Under the ACRA, individual employees and supervisors may not be held personally liable for discriminatory acts. The ACRA applies only to covered entities: employers, employment agencies, labor organizations and joint labor-management committees. +Ariz. Rev. Stat. § 41-1461. Civil liability for employment discrimination is limited to employers, not to agents of the employer. See Miller v. Maxwell's In'l, Inc., +991 F.2d 583 (9th Cir. 1991).

Administrative Process

Recordkeeping

Employers must make and keep any and all records that are relevant to determining whether unlawful employment practices have occurred or are being committed. Employers must also conform with any federal recordkeeping requirements under the EEOC.

Employers may request an exemption if this recordkeeping will result in an undue hardship to the employer. If it is determined that following the recordkeeping guidelines is not an undue hardship on the employer, a civil lawsuit may be filed against the employer in the Superior Court of the county where the records are kept. +Ariz. Rev. Stat. § 41-1482 ; +Ariz. Admin. Code R10-3-209.

Posters

Employers, employment agencies and labor organizations in Arizona must conspicuously place a poster on the premises providing notice to employees, patrons, potential employees and members of their civil rights under the ACRA, as well as information about how to file a complaint. The poster must be placed in a customary location for such notices. The poster may be obtained by the Civil Rights Division of the Attorney General's Office. Failure of the employer to post the notice poster received from the Civil Rights Division will result in a fine of up to $100. +Ariz. Rev. Stat. § 41-1483 ; +Ariz. Admin. Code R10-3-107.

Administrative Claims and Remedies

Employment discrimination claims are handled through the Civil Rights Division of the Attorney General's office and through the EEOC. Employee complaints must be filed with the Civil Rights Division within 180 days of the last discriminatory incident, and within 300 days with the EEOC. The Civil Rights Division investigates, resolves, mediates, conciliates, and brings legal action against employers.

The Civil Rights Division of the Attorney General's office, upon investigation and determination of a legitimate claim, will attempt to mediate and/or conciliate the claim before bringing a lawsuit on behalf of the employee who has filed the claim. In cases where the claim cannot be settled through mediation or conciliation, a civil claim may be filed by the division, or may be filed by the individual claimant against the employer. If reasonable cause is found to exist, the claimant has one year within which to file a civil lawsuit against the employer, if no conciliation agreement has been reached between the parties. +Ariz. Rev. Stat. § 41-1481.

Most complaints filed with the Civil Rights Division are dually filed with the EEOC. Additional remedies may also be available, such as reinstatement of employment, settlement, litigation, and employer compliance.

Punitive damages may be obtained against an employer for acts of its employees if the acts committed were in furtherance of the employer's business and were within the scope of the employment. This applies even if the employee is deceased. See Haralson v. Fisher Surveying Inc., +201 Ariz. 1 (2001).

Equal Pay

Under the Arizona Equal Pay Law, an employer is prohibited from paying any employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for the same quantity and quality of the same classification of work, Exceptions may apply based on the following additional factors:

  • Seniority;
  • Length of service;
  • Ability;
  • Skill;
  • Difference in duties or services performed (whether regularly or occasionally);
  • Differences in the shift or time of day worked, hours of owrk;
  • Restrictions or prohibitions on lifting or moving objects in excess of a specified weight; or
  • Other reasonable differentiation factors not based on sex, when exercised in good faith.

+Ariz. Rev. Stat. § 23-341.

Employers in violation of this statute will be liable to the employee for the difference in wage amount. Employees must file a claim with the Industrial Commission of Arizona within six months of the violation, and the employee bears the burden of proof to establish the different rate of pay is based on their sex, and not on any other factors.

Additionally, under the ACRA it is unlawful for an employer to discriminate against any individual with respect to the individual's compensation because of the individual's sex. +Ariz. Rev. Stat. § 41-1463(B)(1).

Lactation/Breastfeeding Protections and Accommodations

A nursing mother may breastfeed an infant in any public place where the mother is lawfully present. +Ariz. Rev. Stat. § 41-1443. The Arizona statute does not specifically mention employers, however, the law likely includes places of employment.

Medical Marijuana

Employers may not discriminate against registered qualifying persons holding medical marijuana cards for hiring, termination or terms and conditions of employment. Employers may not discriminate against a registered qualifying patient who tests positive for marijuana, unless the patient used, possessed, or was impaired by marijuana on the employer's premises or during hours of employment. Employers may discriminate against a person if failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or federal regulations. +Ariz. Rev. Stat. § 36-2813.

Employers may not be penalized or denied benefits for employing registered qualifying patients or registered designated caregivers of medical marijuana patients. +Ariz. Rev. Stat. § 36-2811.

Employers do not have to allow employees, customers, clients or guests to use marijuana on their property and the law does not prohibit an employer from disciplining employees who ingest marijuana at work or who work while under the influence of marijuana. +Ariz. Rev. Stat. § 36-2814. However, a registered qualifying patient should not be considered under the influence of marijuana only because of the presence of metabolites or other marijuana components in their system, which are in insufficient amounts to cause impairment. For example, a federal court in Arizona held that a private right of action for discrimination exists under the Arizona Medical Marijuana Act. See Whitmire v. Wal-Mart Stores, Inc., +2019 U.S. Dist. LEXIS 20049 (D. Ariz. Feb. 7, 2019). In that case, after a minor accident at work (for which she was found not responsible), the employee who is a registered marijuana user, was sent by her employer to an urgent care facility for treatment and a post-accident drug test. The test was positive, and the employee was terminated as a result of the positive drug test. The court found that the employer discriminated against the employee when it terminated her based on the positive drug test without any evidence that she used, possessed, or was impaired by marijuana at work.

Earned Paid Sick Time

On November 8, 2016, Arizona voters approved the Fair Wages and Healthy Families Act (Act), which provides for increases to the state minimum wage and allows employees to earn paid sick time. +2016 Bill Text AZ V. 5. The earned paid sick time provisions took effect July 1, 2017. The law applies to all employers except for the state of Arizona and the federal government but the amount of sick time that must be provided varies depending on the employer's size. +Ariz. Rev. Stat. § 23-371. An employer is prohibited from interfering with employee rights under the Act or discriminating or retaliating against an employee or former employee because he or she has exercised a protected right in connection with the Act. See Other Leaves: Arizona.

Military Protections

Arizona has enacted laws providing leave and reinstatement rights and discrimination protections to members of the National Guard and US Armed Forces. See USERRA: Arizona. Members of the National Guard may not be deprived of employment or prevented from obtaining employment due to their membership in the National Guard or absence from employment under competent military orders.

In addition, the law prohibits threatening or actually inflicting physical punishment or economic damage on a person in order to dissuade him or her from enlisting in the Arizona or US military forces.

A violation is considered a Class 2 misdemeanor.

+Ariz. Rev. Stat. § 26-167.

Veterans Preference

A private employer in Arizona may adopt a voluntary veterans preference employment policy provided the policy is in writing and uniformly applied to decisions regarding hiring, promotion or retention during a reduction in force. +2015 Ariz. ALS 202. See Recruiting: Arizona. An employer should be careful in applying any veterans preference policy that the policy does not have an adverse impact on any other protected class.

.

Local Requirements

Phoenix Discrimination

The Phoenix Antidiscrimination Ordinance makes it unlawful for an employer to fail or refuse to hire or to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's:

  • Race;
  • Color;
  • Religion;
  • Sex;
  • National origin;
  • Age;
  • Genetic information;
  • Marital status;
  • Sexual orientation;
  • Gender identity or expression; or
  • Disability.

+Phoenix, Arizona Code of Ordinances Sec. 18-4.

An employer means a person doing business within the city of Phoenix who has one or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person. +Phoenix, Arizona Code of Ordinances Sec. 18-3.

Tempe Discrimination

The Tempe Antidiscrimination Ordinance prohibits employment discrimination based on:

  • Race;
  • Color;
  • Gender;
  • Religion
  • National origin;
  • Familial status;
  • Age;
  • Disability;
  • US military veteran status;
  • Sexual orientation; and
  • Gender identity.

Tempe employers (with one or more employees), labor organizations and city contractors are covered by the ordinance. However, the ordinance excludes certain organizations from coverage, including religious organizations or certain associations and social clubs. +Tempe, Arizona City Code Sec. 2-603

Although an employer that violates the ordinance is subject to a civil sanction, which includes a fine of up to $2,500, the ordinance contains conciliation provisions that aim to educate businesses about discriminatory practices and to eliminate any prohibited practice without having to resort to the imposition of a fine.

Tucson Discrimination

The Tucson Human Relations Ordinance makes it unlawful for an employer to refuse to hire, discharge or discrimination against any person in compensation or in terms and conditions of employment based on:

  • Race;
  • Color;
  • Religion;
  • Ancestry;
  • Sex;
  • Disability;
  • National origin;
  • Sexual orientation;
  • Gender identity;
  • Familial status; or
  • Marital status.

+Tucson, Arizona Code of Ordinances Sec. 17-12.

The Tucson City Code defines discrimination as making directly or indirectly, any distinction with respect to any person or persons based on race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status or marital status. +Tucson, Arizona Code of Ordinances Sec. 17-11.

The Tucson City Code defines an employer as a person with one or more employees, not to exceed 100 employees, for each working day in each of 20 or more calendar weeks in the current or preceding years, and any agent of such person. However, Indian Tribes, the City of Tucson and private membership organizations (excluding labor unions) are excluded from coverage. +Tucson, Arizona Code of Ordinances Sec. 17-11.

Every covered employer must post a notice of nondiscrimination in a conspicuous place (e.g., employee break rooms). +Tucson, Arizona Code of Ordinances Sec. 17-16(c).

An individual may file a complaint with the Office of Equal Opportunity Programs (OEOP) within 90 calendar days of the alleged violation. The OEOP will furnish the employer with a copy of the charge, after which the employer has 20 days in which to file a written answer. The OEOP will investigate the charge and render written findings within 120 days of receiving the charge. Within 30 days of receiving a finding of no cause, a charging party may file a request to have the findings reviewed by the Tucson Human Relations Commission (the Commission).

The Commission is then required to perform its review and render a finding within 45 days of the request being filed. If the Commission determines there is no reasonable cause to believe the employer engaged in a discriminatory practice, it will issue an order dismissing the charge. If the Commission believes cause exists to conclude an employer has discriminated, it will issue an order reversing the OEOP's findings and send the case back to the OEOP for further action.

The OEOP may attempt to eliminate the alleged discriminatory practice "by conference, conciliation, and persuasion." A finding of reasonable cause may also lead to a complaint being filed by the city attorney. +Tucson, Arizona Code of Ordinances Sec. 17-15.

Future Developments

There are no new developments to report at this time. Continue to check XpertHR regularly for the latest on this and other topics.

Additional Resources

Employee Management > EEO - Discrimination

Arizona Civil Rights Division