House Bill No. 303
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act prohibiting preferential treatment in employment, education, and contracting by state government, local government, public schools, and public postsecondary educational institutions based on race, color, ethnicity, national origin, or sex; abolishing existing preferences; amending sections 2-18-102, 20-25-421, 49-2-303, 49-2-403, 49-3-103, 49-3-201, and 81-2-120, MCA; and repealing sections 2-18-111 and 18-1-110, MCA."
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Prohibition against preferential treatment based on race, color, ethnicity, national origin, or sex. (1) Neither the state nor a county, city, town, school or school district, special district, or other local governmental entity or subdivision of the state, nor the state university system or other postsecondary education institution of the state or of a local governmental entity or subdivision, may grant preferential treatment to an individual or group on the basis of race, color, ethnicity, national origin, or sex in public employment, public education, or public contracting.
(2) This section does not prohibit bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(3) This section does not prohibit a law or action necessary to establish or maintain eligibility for a federal program if ineligibility would result in a loss of federal funds to the governmental entity subject to the law or action.
(4) Subsection (1) applies to the maximum extent allowed under the Montana constitution and the constitution and laws of the United States.
Section 2. Section 2-18-102, MCA, is amended to read:
"2-18-102. Personnel administration -- general policy setting. (1) Except as otherwise provided by law or collective bargaining agreement, the department shall:
(a) encourage and exercise leadership in the development of effective personnel administration within the several agencies in the state and make available the facilities of the department to this end;
(b) foster and develop programs for recruitment and selection of capable persons for permanent, seasonal, temporary, and other types of positions and for the improvement of employee effectiveness, including training, ethical conduct, safety, health, counseling, welfare, discipline, grievances, and evaluation for productivity and retention in permanent status;
(c) foster, develop, and promote job sharing in agencies;
(d) investigate from time to time the operation and effect of parts 1 and 2 of this chapter and the policies made under those parts and report the findings and recommendations to the governor;
(e) establish policies, procedures, and forms for the maintenance of records of all employees in the state service;
(f) apply and carry out parts 1 and 2 and the policies under those parts and perform any other lawful acts that may be necessary or desirable to carry out the purposes and provisions of parts 1 and 2.
(2) The department may delegate authority granted to it under parts 1 and 2 to agencies in the state service that effectively demonstrate the ability to carry out the provisions of parts 1 and 2, provided that the agencies remain in compliance with policies, procedures, timetables, and standards established by the department.
(3) The department shall develop and issue personnel policies for the state and shall adopt rules to implement this part
except 2-18-111. Adequate public notice must be given to all interested parties of proposed changes or additions to the
personnel policies before the date on which they are to take effect. If requested by any of the affected parties, the
department shall schedule a public hearing on proposed changes or additions to the personnel policies before the date on
which they are to take effect.
(4) The department shall develop model rules of conduct for all state employees based upon the provisions of Title 2, chapter 2. The department shall provide employees with a pamphlet summarizing the provisions of Title 2, chapter 2. Each state agency shall adopt the model rules of conduct and additional rules appropriate to the specific circumstances of the agency."
Section 3. Section 20-25-421, MCA, is amended to read:
"20-25-421. Charges for tuition -- waivers. The regents may:
(1) prescribe tuition rates, matriculation charges, and incidental fees for students in institutions under their jurisdiction;
(2) waive nonresident tuition for selected and approved nonresident students, not to exceed at any unit 2% of the full-time equivalent enrollment at that unit during the preceding year; except that when necessary tuition may be waived in excess of 2% of unit enrollment for nonresident students who enroll under provisions of any WICHE-sponsored state reciprocal agreements which provide for the payment, where required, of the student support fee by the reciprocal state;
(3) waive resident tuition for students at least 62 years of age;
(4) waive tuition and fees for:
persons of one-fourth Indian blood or more who have been bona fide residents of Montana for at least 1 year prior to
enrollment in the Montana university system; (b) persons designated by the department of corrections pursuant to 52-5-112; (c)(b) residents of Montana who served with the armed forces of the United States in any of its wars and who were
honorably discharged from military service; (d)(c) children of residents of Montana who served with the armed forces of the United States in any of its wars and who
were killed in action or died as a result of injury, disease, or other disability incurred while in the service of the armed
forces of the United States; or (e)(d) the spouses or children of residents of Montana who have been declared to be prisoners of war or missing in action;
(5) waive tuition charges for qualified survivors of Montana firefighters or peace officers killed in the course and scope of employment. For purposes of this subsection, a qualified survivor is a person who meets the entrance requirements at the state university or college of the person's choice and is the surviving spouse or child of any of the following who were killed in the course and scope of employment:
(a) a paid or volunteer member of a municipal or rural fire department;
(b) a law enforcement officer as defined in 7-32-201; or
(c) a full-time highway patrol officer."
Section 4. Section 49-2-303, MCA, is amended to read:
"49-2-303. Discrimination in employment. (1) It is an unlawful discriminatory practice for:
(a) an employer to refuse employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, creed, religion, color, or national origin or because of age, physical or mental disability, marital status, or sex when the reasonable demands of the position do not require an age, physical or mental disability, marital status, or sex distinction;
(b) a labor organization or joint labor management committee controlling apprenticeship to exclude or expel any person from its membership or from an apprenticeship or training program or to discriminate in any way against a member of or an applicant to the labor organization or an employer or employee because of race, creed, religion, color, or national origin or because of age, physical or mental disability, marital status, or sex when the reasonable demands of the program do not require an age, physical or mental disability, marital status, or sex distinction;
(c) an employer or employment agency to print or circulate or cause to be printed or circulated a statement, advertisement, or publication or to use an employment application that expresses, directly or indirectly, a limitation, specification, or discrimination as to sex, marital status, age, physical or mental disability, race, creed, religion, color, or national origin or an intent to make the limitation, unless based upon a bona fide occupational qualification;
(d) an employment agency to fail or refuse to refer for employment, to classify, or otherwise to discriminate against any individual because of sex, marital status, age, physical or mental disability, race, creed, religion, color, or national origin, unless based upon a bona fide occupational qualification.
(2) The exceptions permitted in subsection (1) based on bona fide occupational qualifications must be strictly construed.
(3) Compliance with 2-2-302 and 2-2-303, which prohibit nepotism in public agencies, may not be construed as a violation of this section.
The application of a hiring preference as provided for in 2-18-111 and 18-1-110 may not be construed to be a violation
of this section. (5) It is not a violation of the prohibition against marital status discrimination in this section for an employer or labor
organization to provide greater or additional contributions to a bona fide group insurance plan for employees with
dependents than to those employees without dependents or with fewer dependents."
Section 5. Section 49-2-403, MCA, is amended to read:
"49-2-403. Specific limits on justification. (1) Except as permitted in 49-2-303(3) through (5) and 49-3-201(5), sex,
marital status, age, physical or mental disability, race, creed, religion, color, or national origin may not comprise
justification for discrimination
except for the legally demonstrable purpose of correcting a previous discriminatory practice.
(2) Age or mental disability may represent a legitimate discriminatory criterion in credit transactions only as it relates to a person's capacity to make or be bound by contracts or other obligations."
Section 6. Section 49-3-103, MCA, is amended to read:
"49-3-103. Permitted distinctions. (1)
Nothing in this This chapter prohibits any does not prohibit a public employer:
(a) from enforcing a differentiation based on marital status, age, or physical or mental disability when based on a bona fide
occupational qualification reasonably necessary to the normal operation of the particular business or
where when the
differentiation is based on reasonable factors other than age;
(b) from observing the terms of a bona fide seniority system or any bona fide employee benefit plan, such as a retirement, pension, or insurance plan, that is not a subterfuge to evade the purposes of this chapter, except that an employee benefit plan may not excuse the failure to hire any individual;
(c) from discharging or otherwise disciplining an individual for good cause; or
(d) from providing greater or additional contributions to a bona fide group insurance plan for employees with dependents than to those employees without dependents or with fewer dependents.
(2) The application of an employment preference as provided for in
2-18-111, 10-2-402 , 18-1-110, and Title 39, chapter 29
or 30, by a public employer, as defined in 39-29-101 and 39-30-103, may not be construed to constitute a violation of this
Section 7. Section 49-3-201, MCA, is amended to read:
"49-3-201. Employment of state and local government personnel. (1) State and local government officials and supervisory personnel shall recruit, appoint, assign, train, evaluate, and promote personnel on the basis of merit and qualifications without regard to race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin.
(2) All state and local governmental agencies shall:
(a) promulgate written directives to carry out this policy and to guarantee equal employment opportunities at all levels of state and local government;
(b) regularly review their personnel practices to
assure ensure compliance; and
(c) conduct continuing orientation and training programs with emphasis on human relations and fair employment practices.
(3) The department of administration shall ensure that the entire examination process, including appraisal of qualifications, is free from bias.
Appointing authorities shall exercise care to ensure utilization of minority group persons. (5) Compliance with 2-2-302 and 2-2-303, which prohibit nepotism in public agencies, may not be construed as a violation
of this section."
Section 8. Section 81-2-120, MCA, is amended to read:
"81-2-120. Management of wild buffalo or bison for disease control. (1) Whenever a publicly owned wild buffalo or bison from a herd that is infected with a dangerous disease enters the state of Montana on public or private land and the disease may spread to persons or livestock or whenever the presence of wild buffalo or bison may jeopardize Montana's compliance with federally administered livestock disease control programs, the department may, under a plan approved by the governor, use any feasible method in taking one or more of the following actions:
(a) The live wild buffalo or bison may be physically removed by the safest and most expeditious means from within the state boundaries, including but not limited to hazing and aversion tactics or capture, transportation, or delivery to a department-approved slaughterhouse.
(b) The live wild buffalo or bison may be destroyed by the use of firearms. If a firearm cannot be used for reasons of public safety or regard for public or private property, the animal may be relocated to a place that is free from public or private hazards and destroyed by firearms or by a humane means of euthanasia.
(2) Whenever the department is responsible for the death of a wild buffalo or bison, either purposefully or unintentionally, the carcass of the animal must be disposed of by the most economical means, including but not limited to burying, incineration, rendering, or field dressing for donation or delivery to a department-approved slaughterhouse or slaughter destination.
(3) In disposing of the carcass, the department:
(a) as first priority, may donate a wild buffalo or bison carcass to a charity
or to an Indian tribal organization; or
(b) may sell a wild buffalo or bison carcass to help defray expenses of the department. If the carcass is sold in this manner, the department shall deposit any revenue derived from the sale of the wild buffalo or bison carcass to the state special revenue fund to the credit of the department.
(4) The department may adopt rules with regard to management of publicly owned wild buffalo or bison that enter Montana on private or public land and that are from a herd that is infected with a contagious disease that may spread to persons or livestock and may jeopardize compliance with federally administered livestock disease control programs."
NEW SECTION. Section 9. Repealer. Sections 2-18-111 and 18-1-110, MCA, are repealed.
NEW SECTION. Section 10. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.