North Dakota Employment Discrimination Law

The following sections of the North Dakota Century Code prohibit employment discrimination.

• Sec. 14-02.4-02. Definitions

North Dakota Fair Employment Act

• 14-02.4-02. Definitions.
• 14-02.4-03. Employer's discriminatory practices.
• 14-02.4-06. Certain employment advertising deemed discriminatory.
• 14-02.4-07. Requiring security clearance not discriminatory.
• 14-02.4-08. Qualification based on religion, sex, national origin, physical or mental disability, or marital status.
• 14-02.4-09. Seniority, merit, or other measuring systems and ability tests not discriminatory.
• 14-02.4-10. Employment of individual - Exceptions - Physical examination -Investigation of medical history.
• 14-02.4-11. Rights of veterans.
• 14-02.4-18. Retaliation prohibited
• 34-01-05. Intimidation, force, and threats against employers prohibited - Penalty.

Age Discrimination

• 34-01-17. Age discrimination.

Equal Pay

• 34-06.1-03. Employer cannot discriminate in payment of employee on the basis of gender.

Marital status discrimination - state employment

• 34-11.1-04.1. Marital status discrimination.

Discrimination Against Smokers

• 23-12-10. Smoking restrictions; Retaliation prohibited.

North Dakota Fair Employment Act

14-02.4-02. Definitions.
In this chapter, unless the context or subject matter otherwise requires:

1. "Age" insofar as it refers to any prohibited unfair employment or other practice means at least forty years of age.

2. "Aggrieved person" includes any person who claims to have been injured by a discriminatory practice.

3. "Court" means the district court in the judicial district in which the alleged discriminatory practice occurred.

4. "Department" means the division of human rights within the department of labor.

5. "Disability" means a physical or mental impairment that substantially limits one or more major life activities, a record of this impairment, or being regarded as having this impairment.

 

6. "Discriminatory practice" means an act or attempted act which because of race, color, religion, sex, national origin, age, physical or mental disability, status with regard to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer results in the unequal treatment or separation or segregation of any persons, or denies, prevents, limits, or otherwise adversely affects, or if accomplished would deny, prevent, limit, or otherwise adversely affect, the benefit of enjoyment by any person of employment, labor union membership, public accommodations, public services, or credit transactions. The term "discriminate" includes segregate or separate and for purposes of discrimination based on sex, it includes sexual harassment. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical conduct or other verbal or physical conduct or communication of a sexual nature when:

a. Submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, public accommodations or public services, or education;

b. Submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual's employment, public accommodations or public services, education, or housing; or

c. That conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations, public services, or educational environment; and in the case of employment, the employer is responsible for its acts and those of its supervisory employees if it knows or should know of the existence of the harassment and fails to take timely and appropriate action.

7. "Employee" means a person who performs services for an employer, who employs one or more individuals, for compensation, whether in the form of wages, salaries, commission, or otherwise. "Employee" does not include a person elected to public office in the state or political subdivision by the qualified voters thereof, or a person chosen by the officer to be on the officer's political staff, or an appointee on the policymaking level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. Provided, "employee" does include a person subject to the civil service or merit system or civil service laws of the state government, governmental agency, or a political subdivision.

8. "Employer" means a person within the state who employs one or more employees for more than one quarter of the year, and a person wherever situated who employs one or more employees whose services are to be partially or wholly performed in the state.

9. "Employment agency" means a person regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunity to work for an employer and includes any agent of the person.

10. "Labor organization" means a person, employee representation committee, plan in which employees participate, or other organization which exists solely or in part for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment.

11. "National origin" means the place of birth of an individual or any of the individual's lineal ancestors.

12. "Otherwise qualified person" means a person who is capable of performing the essential functions of the particular employment in question.

13. "Person" means an individual, partnership, association, corporation, limited liability company, unincorporated organization, mutual company, joint stock company, trust, agent, legal representative, trustee, trustee in bankruptcy, receiver, labor organization, public body, public corporation, and the state and a political subdivision and agency thereof.

14. "Public accommodation" means every place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods to the general public for a fee, charge, or gratuity. "Public accommodation" does not include a bona fide private club or other place, establishment, or facility which is by its nature distinctly private; provided, however, the distinctly private place, establishment, or facility is a "public accommodation" during the period it caters or offers services, facilities, or goods to the general public for a fee, charge, or gratuity.

15. "Public service" means a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of this state, a political subdivision thereof, or a public corporation.

16. "Readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense by a person engaged in the provision of public accommodations.

17. "Reasonable accommodations" means accommodations by an employer that do not:

a. Unduly disrupt or interfere with the employer's normal operations;

b. Threaten the health or safety of the individual with a disability or others;

c. Contradict a business necessity of the employer; or

d. Impose undue hardship on the employer, based on the size of the employer's business, the type of business, the financial resources of the employer, and the estimated cost and extent of the accommodation.

18. "Sex" includes pregnancy, childbirth, and disabilities related to pregnancy or childbirth.

19. "Status with regard to public assistance" means the condition of being a recipient of federal, state, or local assistance, including medical assistance, or of being a tenant receiving federal, state, or local subsidies, including rental assistance or rent supplements.)

14-02.4-03. Employer's discriminatory practices.

It is a discriminatory practice for an employer to fail or refuse to hire a person; to discharge an employee; or to accord adverse or unequal treatment to a person or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of race, color, religion, sex, national origin, age, physical or mental disability, status with respect to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer. It is a discriminatory practice for an employer to fail or refuse to make reasonable accommodations for an otherwise qualified person with a physical or mental disability or because of that person's religion. This chapter does not prohibit compulsory retirement of any employee who has attained sixty-five years of age, but not seventy years of age, and who, for the two-year period immediately before retirement, is employed in a bona fide executive or high policymaking position, if the employee is entitled to an immediate nonforfeiture annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of those plans, of the employer of the employee, which equal, in the aggregate, at least forty-four thousand dollars.

14-02.4-06. Certain employment advertising deemed discriminatory.

It is a discriminatory practice for an employer, employment agency, or labor organization, or the employees, agents, or members thereof directly or indirectly to advertise or in any other manner indicate or publicize that individuals of a particular race, color, religion, sex, national origin, age, physical or mental disability, or status with respect to marriage or public assistance, or who participate in lawful activity off the employer's premises during nonworking hours which activity is not in direct conflict with the essential business-related interests of the employer, are unwelcome, objectionable, not acceptable, or not solicited.

14-02.4-07. Requiring security clearance not discriminatory.

Notwithstanding sections 14-02.4-03 through 14-02.4-06, it is not a discriminatory practice for an employer to fail or refuse to hire and employ an individual for a position, for an employer to discharge an individual from a position, or for an employment agency to fail or refuse to refer an individual for employment in a position, or for a labor organization to fail or refuse to refer an individual for employment in a position if the occupancy of the position, or access to the premises upon which the duties of the position are performed, is subject to a requirement imposed in the interest of the national security of the United States under a security program administered under a statute of the United States or an executive order of the president and the individual has not fulfilled or has ceased to fulfill that requirement.

14-02.4-08. Qualification based on religion, sex, national origin, physical or mental disability, or marital status.

Notwithstanding sections 14-02.4-03 through 14-02.4-06, it is not a discriminatory practice for an employer to fail or refuse to hire and employ an individual for a position, to discharge an individual from a position, or for an employment agency to fail or refuse to refer an individual for employment in a position, or for a labor organization to fail or refuse to refer an individual for employment, on the basis of religion, sex, national origin, physical or mental disability, or marital status in those circumstances where religion, sex, national origin, physical or mental disability, or marital status is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise; nor is it a discriminatory practice for an employer to fail or refuse to hire and employ an individual for a position, or to discharge an individual from a position on the basis of that individual's participation in a lawful activity that is off the employer's premises and that takes place during nonworking hours and which is not in direct conflict with the essential business-related interests of the employer, if that participation is contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee or group of employees, rather than to all employees of that employer .

14-02.4-09. Seniority, merit, or other measuring systems and ability tests not discriminatory.

Notwithstanding sections 14-02.4-03 through 14-02.4-06, it is not a discriminatory practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations provided that the differences are not the result of an intention to discriminate because of race, color, religion, sex, national origin, age, physical or mental disability, status with respect to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours; or for an employer to give and to act upon the results of any professionally developed ability test; provided, that the test, its administration, or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, national origin, age, physical or mental disability, status with respect to marriage or public assistance, or participation in a lawful activity off the employer's premises during nonworking hours.

14-02.4-10. Employment of individual - Exceptions - Physical examination -Investigation of medical history.

1. Sections 14-02.4-03 through 14-02.4-06 do not apply to business policies or practices relating to the employment of an individual by the individual's parent, grandparent, spouse, child, or grandchild, or in the domestic service of a person.

2. The employment of one person in place of another, standing by itself, is not evidence of a discriminatory practice.

3. After a conditional offer of employment, it is not discriminatory practice for an employer, employment agency, or labor organization to: a. Require a person to undergo physical examination for the purpose of determining the person's capability to perform the essential functions of the job with or without reasonable accommodations if every entering employee in the same job category is subjected to the examination; or b. Conduct an investigation as to the person's medical history for the purpose of determining the person's capability to perform available employment if every entering employee in the same job category is subjected to the investigation.

4. Medical history obtained under this section must be collected and maintained separate from nonmedical information and must be kept confidential.

14-02.4-11. Rights of veterans.

Nothing contained in sections 14-02.4-03 through 14-02.4-06 repeals or modifies a federal, state, or local statute, regulation, or ordinance creating special rights or preference for veterans.

14-02.4-18. Retaliation prohibited.

It is a discriminatory practice for a person to conceal unlawful discrimination or aid, abet, compel, coerce, incite, or induce another person to unlawfully discriminate in violation of this chapter, or to engage in any form of threats, retaliation, or discrimination against a person who has opposed any unlawful discriminatory practice or who, in good faith, has filed a complaint, testified, assisted, or participated in an investigation, proceeding, hearing, or litigation under this chapter.

14-02.4-19. Actions - Limitations.

Any person claiming to be aggrieved by a discriminatory practice with regard to public services or public accommodations in violation of this Chapter may file a complaint of discriminatory practices with the department or may bring an action in the district court in the judicial district in which the unlawful practice is alleged to have been committed or in the district in which the person would have obtained public accommodation or service were it not for the alleged discriminatory act within one hundred eighty days of the alleged act of wrongdoing. Any person claiming to be aggrieved by any discriminatory practice other than public services or public accommodations in violation of this chapter may file a complaint of discriminatory practice with the department or may bring an action in the district court in the judicial district in which the unlawful practice is alleged to have been committed, in the district in which the records relevant to the practice are maintained and administered, or in the district in which the person would have worked or obtained credit were it not for the alleged discriminatory act within three hundred days of the alleged act of wrongdoing. If a complaint of a discriminatory practice is first filed with the department, the period of limitation for bringing an action in the district court is ninety days from the date the department issues a written notice to the complainant that administrative action on the complaint has concluded. [Sec. 14-02.3-19, as amended by S.B. 2067, L. 2003, effective Aug. 1, 2003].

14-02.4-20. Relief.

If the department, as the result of an administrative hearing, or the court determines that the respondent has engaged in or is engaging in a discriminatory practice, the department or the court may enjoin the respondent from engaging in the unlawful practice and order appropriate relief, which may include temporary or permanent injunctions, equitable relief, and backpay limited to no more than two years from the date a minimally sufficient complaint was filed with the department or the court. Interim earnings or amounts earnable with reasonable diligence by the person discriminated against reduce the backpay otherwise allowable. In any action or proceeding under this chapter, the court may grant the prevailing party a reasonable attorney's fee as part of the costs. If the court finds that the complainant's allegation of a discriminatory practice is false and not made in good faith, the court shall order the complainant to pay court costs and reasonable attorney's fees incurred by the respondent in responding to the allegation.

14-02.4-21. Records exempt.

A complaint filed with the department under this chapter is an open record. Information obtained during an investigation conducted by the department under this chapter is exempt from section 44-04-18 before the institution of any judicial proceedings or administrative hearing relating to the complaint under this chapter or before the administrative closure of a complaint by the department. The department may disclose to the complainant or the respondent, or a representative of the complainant or the respondent, information obtained during an investigation if deemed necessary by the department for securing an appropriate resolution of a complaint. The department may disclose information obtained during an investigation to a federal agency if necessary for the processing of complaints under an agreement with the agency. Individually identifiable health information obtained during an investigation may not be disclosed by the department except to a federal agency if necessary for the processing of complaints under an agreement with the agency. Statements made or actions taken during conciliation efforts relating to a complaint under this chapter may not be disclosed by the department, except to a federal agency if necessary for the processing of complaints under an agreement with the agency, and may not be used as evidence in a subsequent proceeding under this chapter without the written consent of the parties to the conciliation. A conciliation agreement is an open record unless the complainant and respondent agree that it is not and the department determines that disclosure is not necessary to further the purposes of this chapter. Investigative working papers are exempt from section 44-04-18.

34-01-03. Voluntary service without employment - Duties of person rendering -Rights to compensation and expenses.

One who officiously and without the consent of the real or apparent owner of a thing takes it into his possession for the purpose of rendering a service about it must complete such service and use ordinary care, diligence, and reasonable skill about the same. He is not entitled to any compensation for his service or expenses, except that he may deduct actual and necessary expenses incurred by him about such service from any profits which his service has caused the thing to acquire for its owner and must account to the owner for the residue.

34-01-05. Intimidation, force, and threats against employers prohibited - Penalty.

Every person who, by any use of force, threats, or intimidation, prevents another from employing any person, and every person who uses force, threats, or intimidation to compel another to employ any person, or to force or induce another to alter his mode of carrying on business, or to limit or increase the number of persons employed by him, or their rate of wages or time of service, is guilty of a class B misdemeanor. 34-01-06. Hindering person from obtaining or enjoying employment - Penalty. Every person who maliciously interferes or hinders, in any way, any person from obtaining employment or from enjoying employment already obtained from any other person, is guilty of a class A misdemeanor. 34-01-07. Black list prohibited - Punishment. Repealed by S.L. 1975, ch. 106, Sec. 673.

34-01-15. Employer to pay for medical examination - Penalty for violation.

Whenever an employer requires an employee, or prospective employee, to take a medical examination, or furnish any medical records, as a condition of retaining or obtaining employment, the employer shall bear the cost of the examination or the furnishing of the medical records. For purposes of this section, medical examination includes any test for the presence of drugs or alcohol. An employer violating any of the provisions of this section is guilty of an infraction.

Age Discrimination

34-01-17. Age discrimination.

No person carrying on or conducting within this state any business requiring employees may refuse to hire, employ, or license, or may bar or discharge from employment, any individual solely upon the ground of age; when the reasonable demands of the position do not require an age distinction; and, provided that such individual is well versed in the line of business carried on by such person, and is qualified physically, mentally, and by training and experience to satisfactorily perform the duties assigned to him or for which he applies. Nothing herein affects the retirement policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of this section. Any person who violates any of the provisions of this section is guilty of a class B misdemeanor.

Equal Pay

34-06.1-03.

No employer may discriminate between employees in the same establishment on the basis of gender, by paying wages to any employee in any occupation in this state at a rate less than the rate at which the employer pays any employee of the opposite gender for comparable work on jobs which have comparable requirements relating to skill, effort, and responsibility. Differentials that are paid pursuant to established seniority systems, job descriptive systems, merit increase systems, or executive training programs, and which do not discriminate on the basis of gender, are not within this prohibition. An employer who is paying a wage differential in violation of this chapter may not, in order to comply with this chapter, reduce the wage rates of any employee. No person may cause or attempt to cause an employer to discriminate against any employee in violation of this chapter. No employer may discharge or discriminate against any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this chapter, except when proven that the act of the employee is fraudulent.

34-06.1-05. Relief.

Any employer who violates the provisions of section 34-06.1-03 is liable to the employee or employees affected in the amount of their unpaid wages, and in instances of willful violation in employee suits up to an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. The court in such action shall, in cases of violation in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action. An agreement by any such employee to work for less than the wage to which such employee is entitled under this chapter is not a bar to any such action, or to a voluntary wage restitution of the full amount due under this chapter. At the written request of any employee claiming to have been paid less than the wage to which he may be entitled under this chapter, the commissioner may bring any legal action necessary in behalf of the employee to collect such claim for unpaid wages. The commissioner may not be required to pay the filing fee, or other costs, in connection with such action. The commissioner has the power to join various claims against the employer in one claim for relief. In proceedings under this section, the court may order other affirmative action as appropriate, including reinstatement of employees discharged in violation of this chapter. The commissioner has the power to petition any court of competent jurisdiction to restrain violations of section 34-06.1-03, and for such affirmative relief as the court may deem appropriate, including restoration of unpaid wages and reinstatement of employees, consistent with the purpose of this chapter.

Marital status discrimination - state employment

34-11.1-04.1. Marital status discrimination.

Each state employee is, if otherwise qualified, entitled to work with that state employee's spouse. A state agency may not discriminate against an employee or an applicant for employment, with respect to working conditions, work place assignment, or other privileges of employment, merely because the spouse of that employee or applicant is also an employee of that state agency. Compliance with section 44-04-09 is not discrimination under this section.

23-12-10. Smoking restrictions; Retaliation prohibited.

1. In order to protect the public health and welfare and to recognize the need for individuals to breathe smoke-free air, smoking is prohibited in all enclosed areas of:

a. Public places; and

b. Places of employment.

2. The following areas are exempt from subsection 1:

a. Private residences, except when operating as a child care facility subject to licensure by the department of human services and when any child cared for under that license is present in that facility.

b. Hotel and motel rooms, and other places of lodging, that are rented to guests and are designated as smoking rooms.

c. Retail tobacco stores, provided that smoke from these places does not infiltrate into areas where smoking is prohibited under this section.

d. Outdoor areas of places of employment, except a sports arena.

e. Any area that is not commonly accessible to the public and which is part of an owner-operated business having no employee other than the owner-operator.

f. Bars.

g. Any place of public access rented or leased for private functions from which the general public and children are excluded and arrangements for the function are under the control of the function sponsor.

h. Separately enclosed areas in truckstops which are accessible only to adults.

3. Smoking as part of a traditional American Indian spiritual or cultural ceremony is not prohibited.

4. No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or other person because that person asserts or exercises any rights afforded by this section or reports or attempts to prosecute a violation of this section.

5. This section may not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.