EEO - Discrimination: Montana
Federal law and guidance on this subject should be reviewed together with this section.
Author: Jason Ritchie, William Dabney, Holland & Hart LLP
- Similar to federal law under Title VII, the Montana Human Rights Act (MHRA) makes discrimination illegal in all aspects of employment. Protected characteristics under the MHRA include race, sex, creed, religion, color, national origin (including ancestry), age, physical or mental disability, marital status and pregnancy/maternity. See Discrimination Under the Montana Human Rights Act.
- Public employers may not discriminate based on political beliefs, and the State of Montana may not discriminate on the basis of sexual orientation and additional categories. See Discrimination Under the Montana Human Rights Act ; Public Employers.
- Covered employers under the MHRA include private and public employers with at least one employee, and any agent of the employer. Fraternal, charitable, or religious entities are specifically excluded from the definition employer in most cases. See Discrimination Under the Montana Human Rights Act ; Covered Employers.
- Under the MHRA, an employer may not refuse employment, or otherwise discriminate against employees or applicants regarding compensation, or other terms, conditions, or privileges of employment such as benefits, discipline, promotion, and termination. Certain discriminatory preemployment inquires regarding protected traits are also prohibited. See Discrimination Under the Montana Human Rights Act ; Unlawful Employment Practices.
- It is not a violation of the MHRA to base an otherwise-discriminatory work rule or employment action on a bona fide occupational qualification (BFOQ) with respect to an employee's age, physical or mental disability, marital status, or sex. A BFOQ may not be applied based on an employee's race, creed, color, religion or national origin (ancestry). See Discrimination Under the Montana Human Rights Act ; Unlawful Employment Practices.
- The MHRA generally protects qualified individuals with a physical or mental disability. Subject to some exceptions, an employer is required to offer a reasonable accommodation so that a qualified individual with a disability may perform the essential functions of a position. See Discrimination Under the Montana Human Rights Act ; Disability Discrimination.
- An employer is not required to offer an accommodation if it would cause an undue hardship, or endanger the health or safety of disabled persons or their co-workers. See Disability Discrimination.
- Public employers are subject to hiring preferences for the disabled. See Discrimination Under the Montana Human Rights Act
- An employer may not discriminate on the basis of age unless it can show strong evidence that the reasonable demands of the position require an age distinction or age-related BFOQ. See Age Discrimination.
- The MHRA is enforced by the Montana Human Rights Commission. Complaints not dismissed after an informal investigation or through mediation are adjudicated in an administrative hearing. Potential remedies include cease and desist orders, pecuniary damages, court costs, and attorneys' fees. Punitive damages are not available, but there can be criminal penalties for willful violations. See Enforcement and Remedies.
Discrimination Under the Montana Human Rights Act
The Montana Human Rights Act (MHRA) makes discrimination illegal in all aspects of employment. +Mont. Code Ann. § 49-2-101 et seq. Similar to federal law under Title VII, protected characteristics under the MHRA include race, sex, creed, religion, color, national origin, age, and physical or mental disability. The MHRA also provides protection on the basis of marital status, and pregnancy/maternity. +Mont. Code Ann. § 49-2-303; +Mont. Code Ann. § 49-2-310; +Mont. Code Ann. § 49-2-101(19).
All public employers are additionally prohibited from discriminating on the basis of political ideas or beliefs. +Mont. Code Ann. § 49-3-207; +Mont. Code Ann. § 49-2-308(1)(c). The State of Montana is additionally prohibited from employment discrimination on the basis of sexual orientation, genetic information, veteran's status, culture, social origin or condition, or ancestry, or because of a person's marriage to or association with individuals in one of these protected classes. +Mont. Admin. R. 2.21.4005.
All public contracts and subcontracts for construction of public buildings or other public work or for goods or services must specify that hiring for such contracts must be based on merit and qualifications, and must prohibit any kind of discrimination by contractors and subcontractors on the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability or national origin. +Mont. Code Ann. § 49-3-207.
It is Montana state policy that physically disabled applicants must be employed in all employment supported at least in part by public funds on the same terms and conditions as the non-disabled, unless the particular disability prevents performance of the job. +Mont. Code Ann. § 49-4-202. Under the Montana Persons With Disabilities Employment Preference Act, disabled applicants who are certified by the Department of Public Health and Human Services and who properly claim a preference for an initial hiring where outside applicants may apply must be hired by public employers (with various exceptions) ahead of other equally qualified applicants or holders of another preference. Various other definitions and procedures apply to this employment preference. +Mont. Code. Ann. §§ 39-30-201 et seq.; +Mont Admin. R. 2.21.1413 et seq.
State of Montana permanent employees are protected by a parental leave policy, which requires a reasonable leave of absence and permits the use of sick leave immediately following the birth or placement of a child, for a period not to exceed 15 working days, if the employee is adopting or is a birth father. +Mont. Code Ann. § 2-18-606.
Lactation/Breastfeeding Protections and Accommodations
A woman has a right to breastfeed her child in public or any place where she is permitted to be.+Mont. Code Ann. § 50-19-501.
No specific discrimination protection exists for nursing mothers in private employment, although the Montana legislature has declared that nursing mothers have a general right to breastfeed anywhere they are otherwise authorized to be, in public or private. +Mont. Code Ann. § 50-19-501. No specific enforcement remedy is provided. Presumably, a private employer could make the presence of any child unauthorized at the workplace, and thereby prevent breastfeeding at work. However, given the statutory right to breastfeed, Montana private employers may consider making reasonable accommodation for employees who wish to nurse a baby at work during non-working time, unless it would prove unduly disruptive.
Pregnancy and Maternity
Montana does not have any law requiring family or medical leave, or prohibiting discrimination on that basis similar to the federal Family and Medical Leave Act. However, discrimination on the basis of pregnancy or maternity is prohibited, including any requirement that an employee take mandatory pregnancy or maternity leave, and any failure to reinstate an employee upon return from pregnancy or maternity leave. +Mont. Code Ann. § 49-2-310; +Mont. Code Ann. § 49-2-311.
Maternity leave is defined as any leave of absence granted to or required of an employee because of such employee's disability due to pregnancy. Disability as a result of pregnancy includes any condition certifiable by a medical doctor as disabling, whether the result of the normal course of pregnancy, or abnormal medical conditions in the course of pregnancy, and may apply from conception through termination of gestation, plus a reasonable period for recovery. +Mont. Admin. R. 24.9.1201.
Covered employers under the MHRA include private and public employers with at least one employee, and any agent of the employer such as a staffing agency. Labor organizations such as unions are similarly prohibited from discrimination in their membership. Fraternal, charitable, or religious entities are generally excluded from the definition of employer under the MHRA, so long as such entities do not exist to make a profit, or provide accommodations or services available on a non-membership basis. +Mont. Code Ann. § 49-2-101(11).
The MHRA also does not apply to employers on or near an Indian reservation with respect to any publicly announced employment practice that is required by a contract or other agreement and under which preferential treatment may be given based on status as an Indian living on or near a reservation. +Mont. Code Ann. § 49-2-303(6).
Under a theory of vicarious liability, employers may be held liable for a supervisor's discrimination under the MHRA which occurs within the scope of the supervisor's employment. See Vainio v. Brookshire, +852 P.2d 596 (Mont. 1993).
Supervisor and Individual Liability
Employer is defined under the MHRA as one who employs one or more persons or an agent of such employer. +Mont. Code Ann. § 49-2-101(11). On its face this definition would not appear to include a supervisor or coworker as potentially liable on an individual basis for violating the MHRA. Federal law is unsettled on this issue under Title VII, and no Montana Supreme Court case appears to have directly considered the question under the MHRA.
Unlawful Employment Practices
It is unlawful under the MHRA for an employer to refuse employment, or to discriminate against an employee with respect to compensation, or terms, conditions, or privileges of employment on the basis of protected characteristics. +Mont. Code Ann. § 49-2-303. Terms, conditions and privileges of employment as to which disparate treatment is prohibited generally may include:
- Advertising for employment
- Job duties or assignments
- Harassment or other forms of a hostile work environment
- Failure to reasonably accommodate a physical or mental disability.
Other possible discriminatory actions include using classification, qualification, or testing criteria that tend to screen out certain candidates based on protected traits, or participating in a contract or other arrangement (including training or apprenticeship programs) that has the effect of discriminating against persons based on protected class. It also raises a presumption of discrimination if an employer makes certain class-based inquiries of applicants (such as their age, religion, race or national origin), or to ask about criminal arrests. Conviction inquiries are permitted. +Mont. Admin. R. 24.9.604; +Mont. Admin. R. 24.9.1406.
Bona Fide Occupational Qualification
However, it is not a violation of the MHRA to base an otherwise-discriminatory work rule or employment action on a bona fide occupational qualification (BFOQ) with respect to the categories of age, physical or mental disability, marital status, or sex. A BFOQ is one that has a legitimate business reason. Under the MHRA a BFOQ is evaluated on the basis of whether the reasonable demands of the position require an otherwise-discriminatory distinction. +Mont. Admin. R. 24.9.605(1). For example, it may be a BFOQ for an employer to require mandatory retirement ages for bus drivers or airline pilots. If challenged, any proposed exception is strictly construed against the employer, which means the employer must present strong evidence of its necessity. +Mont. Code Ann. § 49-2-402; +Mont. Admin. R. 24.9.605(2). A BFOQ defense is not applicable to an employee's race, creed, color, religion or national origin.
It is not prohibited under the MHRA for an employer to:
- Comply with mandated preferences for the employment of Indians based on tribal or reservation residency status. +Mont Code Ann. § 49-2-303(4);
- Provide greater or additional contributions to a bona fide group insurance plan for employees with differing numbers of dependents. +Mont Code Ann. § 49-2-303(5).
- Hire an employee's spouse where the employee is otherwise qualified for his or her position. +Mont Code Ann. § 49-2-303(5).
Public employers or contractors may give preference to veterans, disabled persons, and residents of Indian reservations without violating the MHRA. +Mont. Code Ann. § 39-29-102 ; +Mont. Code Ann. § 39-30-101 et seq ; +Mont. Code Ann. § 18-1-110.
Remedying Previous Discriminatory Practices
Otherwise prohibited discrimination may be allowed if it demonstrably serves to remedy a previous discriminatory practice. +Mont. Code Ann. § 49-2-403. Essentially this provision allows for some form of affirmative action, although there is little guidance for private employers as to how it might be applied in practice.
For a person to be protected under the MHRA from disability discrimination the standards are similar to the federal Americans with Disabilities Act (ADA). The MHRA generally protects qualified individuals with a disability, and subject to some exceptions, requires an employer to offer reasonable accommodation in order that a qualified person with a disability may perform the essential functions of a position. Under the MHRA, disability is defined as:
- A physical or mental impairment that substantially limits one or more of a person's major life activities;
- A record of such an impairment; or
- A condition regarded as such an impairment.
+Mont. Code Ann. § 49-2-101(19) ; +Mont. Code Ann.§ 49-4-101. Notably, the statute does not exclude alcohol or drug dependency from the definition of disability, as is the case under the federal ADA. +Mont Code. Ann. § 49-2-101(19). The Montana Supreme Court has held that whether a particular condition meets the definition of disability must be determined a on a case-by-case basis, and the Court often refers to authority and EEOC guidelines under the ADA. See Martinell v. Montana Power Co., +886 P.2d 421 (Mont.1994).
A qualified individual with a disability is also defined similarly to the federal ADA (someone who can perform the essential functions of a position with or without reasonable accommodation). +Mont. Admin. R. 24.9.605(4). If a person cannot perform the essential functions of a position and no reasonable accommodation is possible, that person is not a qualified individual with a disability, and is not protected.
Similar to the ADA, the MHRA requirement to offer a reasonable accommodation is also limited if it would cause an undue hardship meaning significant difficulty or extraordinary cost when considered in light of the impact on the employer's operation, size and resources. +Mont. Admin. R. 24.9.606(5). In addition, under the MHRA an accommodation is not reasonable if it would endanger the health or safety of any person. +Mont. Code Ann. § 49-4-101. If an employer believes a specific accommodation is unreasonable, dangerous, or presents an undue hardship, it has an affirmative duty to investigate before rejecting the proposed accommodation. See Reeves v. Dairy Queen, Inc., +953 P.2d 703 (Mont 1998).
While the MHRA does track the federal ADA in many respects, there is some lack of clarity in certain MHRA language regarding potential statutory defenses. For example, an employer will not be held to have discriminated if the disability at issue reasonably precludes the performance of the job. +Mont Code Ann. § 49-4-101. Further, the Act conflates BFOQ analysis with reasonable accommodation analysis where it allows that discrimination does not occur where the reasonable demands of the position require a distinction based on disability. +Mont Code. Ann. § 49-2-303(1)(a). There are no similar ADA defenses, and little guidance exists regarding the application of this MHRA language. Employers should consult counsel where a dispute exists over job performance by a disabled employee or applicant.
Like the ADA, under the MHRA an employer cannot require medical examinations or make inquiries to determine whether an employee has a physical or mental disability, or the nature or severity of a disability, unless these inquiries are job-related and consistent with business necessity. +Mont Admin. R. 24.9.607(1) ; +Mont Admin. R. 24.9.1406. However, employers may still require preemployment and other drug and alcohol testing pursuant to a qualified testing program under the Montana Workforce Drug and Alcohol Testing Act. +Mont. Code Ann. § 39-2-205 et seq. Also, an employer may require medical certification of occupational disability due to pregnancy before granting pregnancy leave under +Mont. Code Ann. § 49-2-310.
Age is a protected category under the MHRA. An employer may not discriminate on the basis of age unless it can show strong evidence that the reasonable demands of the position require an age distinction or age-related BFOQ. +Mont. Code Ann. § 49-2-303(1)(a). For example, this analysis would apply if an employer wanted to establish a maximum retirement age.
A public employer has the additional latitude to differentiate based on age per the terms of a bona fide seniority system, or employee benefit plan such as a retirement, pension, or insurance plan, so long as these are not a subterfuge to evade the MHRA. A public employer may also implement any rule or action containing an age distinction where it is based on reasonable factors other than age. +Mont. Code. Ann. § 49-3-103(1). For example, maximum retirement ages for public employers are subject to this additional analysis. See Taylor v. Department of Fish, Wildlife & Parks, State of Mont., +666 P.2d 1228 (Mont.1983).
Preemployment inquiries regarding age are limited to jobs for which age is a BFOQ. +Mont. Admin. R. 24.9.1406(d).
Religion is a protected category under the MHRA. An employer may not discriminate on the basis of religion, and no distinction or BFOQ may be utilized as an exception. +Mont. Code Ann. § 49-2-303. Preemployment inquiries may not elicit information regarding an applicant's religious preferences. +Mont. Admin. R. 24.9.1406.
However, religious institutions such as schools or churches may take employment actions based on religious considerations to the extent the decision is consistent with the employer's constitutional right to free exercise of religion. See Parker-Bigback v. St. Labre School, +7 P.3d 361 (Mont. 2000); Miller v. Catholic Diocese of Great Falls, Billings, +728 P.2d 794 (Mont. 1986). Unlike private employers, the State of Montana as an employer may utilize a BFOQ regarding religious requirements if required by the reasonable demands of the position. +Mont. Admin. R. 2.21.4005.
There is no particular guidance from the Montana Supreme Court under the MHRA as to whether a private employer must accommodate an employee's free exercise of religion. However, a Montana Human Rights Commission rule states that employers do have an MHRA duty to accommodate an employee's religion, unless it would cause more than a de minimis hardship on the employer's business. +Mont. Admin. R. 24.9.608. Further, the Montana Supreme Court has enforced Title VII's separate religious accommodation requirement. See Wolfe v. State, Dept. of Labor and Industry, Bd. of Personnel Appeals ex rel. Helena Educ. Ass'n, +843 P.2d 338 (Mont. 1992).
There is no Montana wage and hour law limiting the number of hours an employee may work on Saturday, Sunday, or holidays so long as the required overtime compensation is paid under +Mont. Code Ann. § 39-3-405. However, nothing in Montana's wage law will relieve an employer of any obligation under other state or federal law requiring a limit on overtime hours of work, or to pay premium rates for work in excess of a daily standard, or for work on Saturdays, Sundays, holidays, or other periods outside of or in excess of the normal or regular workweek or workday. +Mont. Admin. R. 24.16.2503.
Enforcement and Remedies
The MHRA is enforced by the Montana Human Rights Commission. A complaint of employment discrimination generally must be filed with the Montana Human Rights Bureau within 180 days of the alleged unlawful action (although an internal grievance process may be allowed to finish before the limitations period begins to run). +Mont. Code Ann. § 49-2-501. Complaints not dismissed after informal investigation or through mediation are adjudicated in an administrative hearing. +Mont. Code Ann. § 49-2-505.
If a complaint is sustained at hearing, remedies include cease-and-desist orders and other conditions placed on the employer's future conduct, as well as pecuniary damages, court costs, and attorney fees. Punitive damages are not available. However, criminal fines and imprisonment are possible for willful violations of the MHRA. +Mont. Code Ann. § 49-2-506; +Mont. Code Ann. § 49-2-510. An employer may appeal a finding of illegal discrimination to district court for administrative review.
Violations of the MHRA regarding physical disability discrimination allow for a separate judicial cause of action in district court for damages and attorneys' fees. +Mont. Code. Ann § 49-4-102.
If a complaint before the Human Rights Commission is dismissed, an employee may then file an action for MHRA damages in district court. +Mont. Code Ann. § 49-2-511. The remedies under the MHRA are exclusive, and an employee may not recover for tort claims or claims under the Montana Wrongful Discharge Act where employee has obtained relief under the MHRA. +Mont. Code Ann. § 49-2-512 ; +Mont. Code Ann § 39-2-912(1).
Posting and Recordkeeping Requirements
There are no general posting requirements for the MHRA, although the Human Rights Commission may require individual employers to post information about the Act. +Mont. Code. Ann. § 49-2-202. An optional poster is also available from the Commission.
All employers, labor organizations, and employment agencies are required to maintain records based on age, sex, and race in order to administer civil rights laws and regulations, however such records are confidential, and may only be disclosed to appropriate state and federal officials. +Mont. Code. Ann. § 49-2-102.
Similar to the federal Equal Pay Act, it is illegal under Montana's wage payment statute, Equal Pay For Women For Equivalent Service, to discriminate in the payment of wages for equal work on the basis of sex. Specifically, an employer is prohibited from employing women in any occupation within the state for compensation less than that paid to men for equivalent service or for the same amount or class of work or labor in the same industry, establishment, office, or place of employment of any kind or description. The statute does not specify any exceptions. Violation of this section is a misdemeanor punishable by a fine up to $500. +Mont. Code Ann. § 39-3-104.
It is an unlawful discriminatory practice for an employer to discriminate against a person in compensation because of sex when the reasonable demands of the position do not require sex distinction. +Mont. Code Ann. § 49-2-303(1)(a).
Veterans Hiring Preference
Montana law permits private employers to adopt a policy providing hiring preferences for veterans, their spouses or their surviving spouses. The adoption of such a policy will not violate state or local equal employment opportunity laws. +39-29-203, MCA. See Recruiting: Montana. 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.
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.
An employer may not discriminate against an individual based on state militia status. +Mont. Code Ann. § 10-1-1005.
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