HOUSE BILL NO. 416

INTRODUCED BY P. CLARK

A BILL FOR AN ACT ENTITLED: "AN ACT ESTABLISHING GENDER AS A BONA FIDE OCCUPATIONAL QUALIFICATION FOR CORRECTIONAL OFFICERS DIRECTLY SUPERVISING OR INSTRUCTING INMATES UNDER THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS; PROVIDING AN EXCEPTION TO UNLAWFUL DISCRIMINATION PRACTICES; AND AMENDING SECTION 49-2-303, MCA."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Direct supervision and instruction of inmates -- same sex correctional officers -- exceptions -- definitions. (1) Except as provided in subsection (2), the direct supervision of inmates under the custody of the department, or the direct instruction of inmates enrolled in the boot camp incarceration program, must be conducted by correctional officers of the same sex, where gender is a bona fide occupational qualification, as provided in 49-2-303(1)(a), necessary to safeguard the inmate's right to privacy.

(2) The limited privacy interest of an inmate under the custody of the department to be free from intrusive observation from members of the opposite sex may not be infringed without showing a compelling state interest.

(3) For the purposes of this section, "direct supervision" and "direct instruction" means the day-to-day oversight of inmates in situations in which the inmate has a compelling right to privacy.

Section 2. 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, unless based on a bona fide occupational qualification;

(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.

(4) 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."

NEW SECTION. Section 3. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 53, chapter 30, part 1, and the provisions of Title 53, chapter 30, part 1 apply to [section 1].

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