2021 -- S 0563

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LC002345

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO PROPERTY -- RHODE ISLAND FAIR HOUSING PRACTICES ACT

     Introduced By: Senators Kallman, Mack, Seveney, Cano, Valverde, DiMario, and Goldin

     Date Introduced: March 05, 2021

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 34-37-3 and 34-37-5 of the General Laws in Chapter 34-37 entitled

"Rhode Island Fair Housing Practices Act" are hereby amended to read as follows:

     34-37-3. Definitions.

     When used in this chapter:

     (1) "Age" means anyone over the age of eighteen (18).

     (2) "Armed forces" means the Army, Navy, Marine Corps, Coast Guard, Merchant

Marines, or Air Force of the United States and the Rhode Island National Guard.

     (3) "Commission" means the Rhode Island commission for human rights created by § 28-

5-8.

     (4) "Disability" means a disability as defined in § 42-87-1.

     Provided, further, that the term "disability" does not include current, illegal use of, or

addiction to, a controlled substance, as defined in 21 U.S.C. § 802.

     (5) "Discriminate" includes segregate, separate, or otherwise differentiate between or

among individuals because of race, color, religion, sex, sexual orientation, gender identity or

expression, marital status, military status as a veteran with an honorable discharge or an honorable

or general administrative discharge, servicemember in the armed forces, country of ancestral origin,

disability, age, housing status, or familial status or because of the race, color, religion, sex, sexual

orientation, gender identity or expression, marital status, military status as a veteran with an

honorable discharge or an honorable or general administrative discharge, servicemember in the

armed forces, country of ancestral origin, disability, age, housing status, or familial status of any

person with whom they are, or may wish to be, associated.

     (6) The term "domestic abuse" for the purposes of this chapter shall have the same meaning

as that set forth in § 15-15-1 and include all forms of domestic violence as set forth in § 12-29-2,

except that the domestic abuse need not involve a minor or parties with minor children.

     (7)(i) "Familial status" means one or more individuals who have not attained the age of

eighteen (18) years being domiciled with:

     (A) A parent or another person having legal custody of the individual or individuals; or

     (B) The designee of the parent or other person having the custody, with the written

permission of the parent or other person, provided that, if the individual is not a relative or legal

dependent of the designee, that the individual shall have been domiciled with the designee for at

least six (6) months.

     (ii) The protections afforded against discrimination on the basis of familial status shall

apply to any person who is pregnant or is in the process of securing legal custody of any individual

who has not attained the age of eighteen (18) years.

     (8) The terms, as used regarding persons with disabilities, "auxiliary aids and services",

"reasonable accommodation", and "reasonable modifications" have the same meaning as those

terms are defined in § 42-87-1.1.

     (9) The term "gender identity or expression" includes a person's actual or perceived gender,

as well as a person's gender identity, gender-related self image, gender-related appearance, or

gender-related expression; whether or not that gender identity, gender-related self image, gender-

related appearance, or gender-related expression is different from that traditionally associated with

the person's sex at birth.

     (10) "Housing accommodation" includes any building or structure, or portion of any

building or structure, or any parcel of land, developed or undeveloped, that is occupied or is

intended, designed, or arranged to be occupied, or to be developed for occupancy, as the home or

residence of one or more persons.

     (11) "Otherwise qualified" includes any person with a disability who, with respect to the

rental of property, personally or with assistance arranged by the person with a disability, is capable

of performing all the responsibilities of a tenant as contained in § 34-18-24.

     (12) "Owner" includes any person having the right to sell, rent, lease, or manage a housing

accommodation.

     (13) "Person" includes one or more individuals, partnerships, associations, organizations,

corporations, labor organizations, mutual companies, joint stock companies, trusts, receivers, legal

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representatives, trustees, other fiduciaries, or real estate brokers or real estate salespersons as

defined in chapter 20.5 of title 5.

     (14) "Senior citizen" means a person sixty-two (62) years of age or older.

     (15) The term "sexual orientation" means having, or being perceived as having, an

orientation for heterosexuality, bisexuality, or homosexuality. This definition is intended to

describe the status of persons and does not render lawful any conduct prohibited by the criminal

laws of this state nor impose any duty on a religious organization. This definition does not confer

legislative approval of said status, but is intended to ensure the basic human rights of persons to

hold and convey property and to give and obtain credit, regardless of such status.

     (16) The term "victim" means a family or household member and all other persons

contained within the definition of those terms as defined in § 12-29-2.

     (17) The term "housing status" means the status of having or not having a fixed or regular

residence, including the status of living on the streets or in a homeless shelter or similar temporary

residence.

     34-37-5. Prevention of unlawful housing practices.

     (a) The commission is empowered and directed to prevent any person from violating any

of the provisions of this chapter, provided that before instituting a formal proceeding it shall attempt

by informal methods of conference, persuasion, and conciliation to induce compliance with this

chapter.

     (b) Upon the commission's own initiative or whenever an aggrieved individual or an

organization chartered for the purpose of or engaged in combating discrimination or racism or of

safeguarding civil liberties, that organization acting on behalf of one or more individuals being

hereinafter referred to as the complainant, makes a charge, in writing, under oath, to the commission

that any person, agency, bureau, corporation, or association, hereinafter referred to as the

respondent, has violated or is violating, to the best of complainant's knowledge and belief, any of

the provisions of this chapter, and that the alleged discriminatory housing practice has occurred or

terminated within one year of the date of filing, the commission may initiate a preliminary

investigation and if it shall determine after the investigation that it is probable that unlawful housing

practices have been or are being engaged in, it shall endeavor to eliminate the unlawful housing

practices by informal methods of conference, conciliation, and persuasion. Nothing said or done

during these endeavors may be used as evidence in any subsequent proceeding. If after the

investigation and conference, the commission is satisfied that any unlawful housing practice of the

respondent will be eliminated, it may, with the consent of the complainant, treat the charge as

conciliated, and entry of that disposition shall be made on the records of the commission. If the

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commission fails to effect the elimination of the unlawful housing practices and to obtain voluntary

compliance with this chapter, or, if the circumstances warrant, in advance of any preliminary

investigation or endeavors, the commission shall have the power to issue and cause to be served

upon any person or respondent a complaint stating the charges in that respect and containing a

notice of hearing before the commission, a member thereof, or a hearing examiner at a place therein

fixed to be held not less than ten (10) days after the service of the complaint.

     (c) The commission, member thereof, or hearing examiner conducting the hearing shall

have the power reasonably and fairly to amend any written complaint at any time prior to the

issuance of an order based thereon. The respondents shall have like power to amend its answer to

the original or amended complaint at any time prior to the issuance of the order. The commissioner

assigned to the preliminary hearing of any charge shall take no part in the final hearing except as a

witness upon competent matters and will have no part in the determination or decision of the case

after hearing.

     (d) The respondent shall have the right to file an answer to the complaint and shall appear

at the hearing in person or otherwise with or without counsel to present evidence and to examine

and cross-examine witnesses.

     (e) In any proceeding the commission, its member, or its agent shall not be bound by the

rules of evidence prevailing in the courts.

     (f) The commission shall in ascertaining the practices followed by the respondent take into

account all evidence, statistical or otherwise, which may tend to prove the existence of a

predetermined pattern of discrimination in housing.

     (g) The testimony taken at the hearing shall be under oath and shall be reduced to writing

and filed with the commission. Thereafter, in its discretion, the commission upon notice may take

further testimony or hear argument.

     (h)(1) If upon all the testimony taken the commission shall determine that the respondent

has engaged in or is engaging in unlawful housing practices, the commission shall state its findings

of fact and shall issue and cause to be served on the respondent an order requiring the respondent

to cease and desist from the unlawful housing practices, and to take such further affirmative or

other action as will effectuate the purposes of this chapter.

     (2) The commission may also order the respondent to pay the complainant damages

sustained thereby; costs, including reasonable attorney's fees incurred at any time in connection

with the commission of the unlawful act, and civil penalties, any amounts awarded to be deposited

in the state treasury. The civil penalty shall be (i) an amount not exceeding ten thousand dollars

($10,000) if the respondent has not been adjudged to have committed any prior discriminatory

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housing practice; (ii) in an amount not exceeding twenty-five thousand dollars ($25,000) if the

respondent has been adjudged to have committed one other discriminatory housing practice during

the five (5) year period ending on the date of filing this charge; and (iii) in an amount not exceeding

fifty thousand dollars ($50,000) if the respondent has been adjudged to have committed two (2) or

more discriminatory housing practices during the seven (7) year period ending on the date of the

filing of this charge; except that if the acts constituting the discriminatory housing practice that is

the object of the charge are committed by the same natural person who has been previously

adjudged to have committed acts constituting a discriminatory housing practice, then the civil

penalties set forth in (ii) and (iii) may be imposed without regard to the period of time within which

any subsequent discriminatory housing practice occurred. When determining the amount of civil

penalties, the commission shall consider as a mitigating factor whether the respondent has acted in

good faith and whether the respondent has actively engaged in regular antidiscrimination

educational programs. Provided that no order shall affect any contract, sale, encumbrance, or lease

consummated before the issuance of the order and involving a bona fide purchaser, encumbrancer

or tenant without actual notice of the charge filed under this title.

     (i) If the commission shall find that no probable cause exists for crediting the charges, or,

if upon all the evidence, it shall find that a respondent has not engaged in unfair housing practices,

the commission shall state its findings of fact and shall issue and cause to be served on the

complainant an order dismissing the complaint as to the respondent. A copy of the order shall be

delivered in all cases to the attorney general and such other public officers as the commission deems

proper.

     (j) Until a transcript of the record in a case shall be filed in a court as provided in subsection

(m), the commission may at any time, upon reasonable notice, and in such manner as it shall deem

proper, modify or set aside, in whole or in part, any of its findings or orders.

     (k) Until such time as a hearing is convened pursuant to this section, no publicity shall be

given to any proceedings before the commission, either by the commission or any employee

thereof, the complainant, or the respondent, except that in the event of a conciliation agreement the

agreement shall be made public unless the complainant and respondent otherwise agree and the

commission determines that disclosure is not required to further the purposes of this chapter. After

the complaint issues and before an order issues, the commission shall not initiate any public notice

of any charge or complaint before the commission, however, the commission may respond to

inquiries about the status of a complaint.

     (l) A complainant may seek a right to sue in state court if not less than one hundred and

twenty (120) days and not more than two (2) years have elapsed from the date of filing of a charge,

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if the commission has been unable to secure a settlement agreement or conciliation agreement and

if the commission has not commenced hearing on a complaint. The commission shall grant the right

to sue within thirty (30) days after receipt of the request. This shall terminate all proceedings before

the commission and shall give to the complainant the right to commence suit in the superior court

within any county as provided in § 28-5-28 within ninety (90) days after the granting of the request.

Any party may claim a trial by jury. The superior court may make orders consistent with subsection

(h) and may also award punitive damages and such other damages as the court deems just and

proper.

     (m)(1) The commission is further empowered to file a complaint in the superior court in

any county in which the unlawful housing practice allegedly occurs, or has occurred, or in which a

defendant resides or maintains a business office, or in Providence County, seeking injunctive relief,

including a temporary restraining order, against the defendant.

     (2) No preliminary injunction shall be effective for more than thirty (30) days; provided

that, if the defendant has sought judicial review of an order of the commission issued pursuant to

this section, or if the commission has sought a decree of the court for the enforcement of the order,

the preliminary injunction shall remain in full force and effect until such time as the judicial review

or the commission's petition for the decree of enforcement is finally heard and determined.

     (3) In any proceeding under this subsection, the commission may, if the prayer of the

original or amended complaint so requests, proceed at the proper time to obtain the relief provided

in § 34-37-6.

     (4) The application by the commission for injunctive relief shall not prevent the

commission from continuing to prosecute the proceeding before it out of which the application

arises.

     (5) Whenever a complaint shall be filed under the provisions of this subsection, the state

shall be liable, in an action brought against it, for the payment of such costs and damages as may

have been incurred or suffered by the defendant should final judgment be entered upon the

complaint in favor of the defendant, or should the commission, having been denied temporary relief

after the entry of a restraining order, fail to prosecute the matter further, or should the commission,

having been granted temporary relief, fail to prosecute the matter further, unless, in the latter two

(2) instances, failure to prosecute is caused by the making of an agreed settlement of any kind with

the defendant, including a conciliation agreement.

     (6) All proceedings taken pursuant to the provisions of this section shall take precedence

over all other civil matters then pending before the court.

     (n) When a complaint issues after a finding of probable cause under subsection (b), any

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party may elect to have the claims asserted in that complaint decided in a civil action in lieu of a

hearing under subsections (b) -- (k). The election must be made not later than twenty (20) days after

the receipt by the electing person of service of the complaint under subsection (b). The person

making the election shall give notice of doing so to the commission, the attorney general, and to all

other complainants and respondents to whom the charge relates. The complainant or the respondent

may elect, within twenty (20) days after receipt of a finding of probable cause, to terminate by

written notice to the commission all proceedings before the commission and have the case heard in

the superior court. In the event of an election to terminate the proceedings, the commission shall

issue a right to sue notice to the complainant with a copy of the notice sent to all parties.

     (1) The complainant shall have the right to commence suit in the superior court within any

county as provided in § 28-5-28 within ninety (90) days of the date of the right to sue notice. Either

party may claim a trial by jury in the superior court.

     (2) Notwithstanding the termination of proceedings before the commission upon the

granting of the right to sue notice, the parties may agree to have the commission seek to conciliate

or mediate settlement of the case within the ninety (90) day period in which the complainant has

the right to commence suit in superior court.

     (o) If an election is made under subsection (n):

     (1) The complainant, the commission, or the attorney general may commence a civil action

on behalf of the aggrieved person in the superior court within any county as provided in § 28-5-28

within ninety (90) days after receipt of notice of an election of the date of the right to sue notice

under subsection (n);

     (2) Any party may claim a trial by jury. Any aggrieved person with respect to the issues to

be determined in a civil action under this subsection may intervene as of right in that civil action;

     (3) The superior court may make orders consistent with subsection (h) and may also award

punitive damages and such damages as the court deems just and proper; provided, that the court

shall not enter a consent order, dismissal stipulation or judgment settling claims of discrimination

in an action or proceeding under this chapter, unless the parties and their counsel attest that a waiver

of all or substantially all attorneys' fees was not compelled as a condition of the settlement.

     SECTION 2. Section 11-24-2.1 of the General Laws in Chapter 11-24 entitled "Hotels And

Public Places" is hereby amended to read as follows:

     11-24-2.1. Discrimination based on disability, age, or sex prohibited.

     (a) Whenever in this chapter there shall appear the words "ancestral origin" there shall be

inserted immediately thereafter the words "disability, age, or sex."

     (b) "Disability" means a disability as defined in § 42-87-1.

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     (c) The terms, as used regarding persons with disabilities, "auxiliary aids and services" and

"reasonable accommodation" have the same meaning as those terms are defined in § 42-87-1.1.

     (d) "Otherwise qualified" means a person with a disability who meets the essential

eligibility requirements for participation in or receipt of benefits from the program or activity.

     (e) Any person with a disability shall be entitled to full and equal access, as other members

of the general public to all public accommodations, subject to the conditions and limitations

established by law and applicable alike to all persons.

     (f) Every person with a disability who has a personal assistive animal or who obtains a

personal assistive animal, shall be entitled to full and equal access to all public accommodations

provided for in this chapter, and shall not be required to pay extra compensation for a personal

assistive animal, but shall be liable for any damage done to the premises by a personal assistive

animal.

     (g) Nothing in this section shall require any person providing a place of public

accommodation to, in any way, incur any greater liability or obligation, or provide a higher degree

of care for a person with a disability than for a person who is not disabled.

     (h) "Sexual orientation" means having or being perceived as having an orientation for

heterosexuality, bisexuality, or homosexuality. This definition is intended to describe the status of

persons and does not render lawful any conduct prohibited by the criminal laws of this state nor

impose any duty on a religious organization. This definition does not confer legislative approval of

that status, but is intended to assure the basic human rights of persons to partake of public

accommodations, regardless of that status.

     (i) "Gender identity or expression" includes a person's actual or perceived gender, as well

as a person's gender identity, gender-related self image, gender-related appearance, or gender-

related expression, whether or not that gender identity, gender-related self image, gender-related

appearance, or gender-related expression is different from that traditionally associated with the

person's sex at birth.

     SECTION 3. Section 28-5-6 of the General Laws in Chapter 28-5 entitled "Fair

Employment Practices" is hereby amended to read as follows:

     28-5-6. Definitions.

     When used in this chapter:

     (1) "Age" means anyone who is at least forty (40) years of age.

     (2) "Because of sex" or "on the basis of sex" include, but are not limited to, because of or

on the basis of pregnancy, childbirth, or related medical conditions, and women affected by

pregnancy, childbirth, or related medical conditions shall be treated the same for all employment

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related purposes, including receipt of benefits under fringe benefit programs, as other persons not

so affected but similar in their ability or inability to work, and nothing in this chapter shall be

interpreted to permit otherwise.

     (3) "Commission" means the Rhode Island commission against discrimination created by

this chapter.

     (4) "Conviction" means, for the purposes of this chapter only, any verdict or finding of

guilt after a criminal trial or any plea of guilty or nolo contendere to a criminal charge.

     (5) "Disability" means a disability as defined in § 42-87-1.

     (6) "Discriminate" includes segregate or separate.

     (7) "Employee" does not include any individual employed by his or her parents, spouse, or

child, or in the domestic service of any person.

     (8)(i) "Employer" includes the state and all political subdivisions of the state and any

person in this state employing four (4) or more individuals, and any person acting in the interest of

an employer directly or indirectly.

     (ii) Nothing in this subdivision shall be construed to apply to a religious corporation,

association, educational institution, or society with respect to the employment of individuals of its

religion to perform work connected with the carrying on of its activities.

     (9) "Employment agency" includes any person undertaking with or without compensation

to procure opportunities to work, or to procure, recruit, refer, or place employees.

     (10) "Firefighter" means an employee the duties of whose position includes work

connected with the control and extinguishment of fires or the maintenance and use of firefighting

apparatus and equipment, including an employee engaged in this activity who is transferred or

promoted to a supervisory or administrative position.

     (11) "Gender identity or expression" includes a person's actual or perceived gender, as well

as a person's gender identity, gender-related self image, gender-related appearance, or gender-

related expression; whether or not that gender identity, gender-related self image, gender-related

appearance, or gender-related expression is different from that traditionally associated with the

person's sex at birth.

     (12) "Labor organization" includes any organization which exists for the purpose, in whole

or in part, of collective bargaining or of dealing with employers concerning grievances, terms or

conditions of employment, or of other mutual aid or protection in relation to employment.

     (13) "Law enforcement officer" means an employee the duties of whose position include

investigation, apprehension, or detention of individuals suspected or convicted of offenses against

the criminal laws of the state, including an employee engaged in such activity who is transferred or

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promoted to a supervisory or administrative position. For the purpose of this subdivision,

"detention" includes the duties of employees assigned to guard individuals incarcerated in any penal

institution.

     (14) "Person" includes one or more individuals, partnerships, associations, organizations,

corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.

     (15) "Religion" includes all aspects of religious observance and practice, as well as belief,

unless an employer, union or employment agency demonstrates that it is unable to reasonably

accommodate to an employee's or prospective employee's or union member's religious observance

or practice without undue hardship on the conduct of its business.

     (16) "Sexual orientation" means having or being perceived as having an orientation for

heterosexuality, bisexuality, or homosexuality. This definition is intended to describe the status of

persons and does not render lawful any conduct prohibited by the criminal laws of this state nor

impose any duty on a religious organization. This definition does not confer legislative approval of

that status, but is intended to assure the basic human rights of persons to obtain and hold

employment, regardless of that status.

     (17) The terms, as used regarding persons with disabilities:

     (i) "Auxiliary aids and services" and "reasonable accommodation" shall have the same

meaning as those items are defined in § 42-87-1.1; and

     (ii) "Hardship" means an "undue hardship" as defined in § 42-87-1.1.

     SECTION 4. Sections 34-37-4.4 and 34-37-4.5 of the General Laws in Chapter 34-37

entitled "Rhode Island Fair Housing Practices Act" are hereby repealed.

     34-37-4.4. Discrimination based on sexual orientation -- Exemption.

     Nothing in this title shall prohibit an owner of a housing accommodation from refusing to

rent to a person based on his or her sexual orientation if the housing accommodation is three (3)

units or less, one (1) of which is occupied by the owner.

     34-37-4.5. Discrimination based on gender identity or expression -- Exemption.

     Nothing in this title shall prohibit an owner of a housing accommodation from refusing to

rent to a person based on his or her gender identity or expression if the housing accommodation is

three (3) units or less, one of which is occupied by the owner.

     SECTION 5. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PROPERTY -- RHODE ISLAND FAIR HOUSING PRACTICES ACT

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     This act would amend the definition of sexual orientation in regard to fair housing

practices. This act would also allow all parties including the attorney general and the commission

to remove the case to superior court. This act would also require the commission to issue a notice

of right to sue when the case is removed to superior court. This act would also allow the parties

ninety (90) days, from the notice of right to sue, to commence the suit in superior court. This act

would also allow mediation during the ninety (90) day period. This act would also prohibit the

court from entering any consent order, dismiss stipulation or judgment of settlement unless all

parties attest that a waiver of attorneys' fees was not compelled as a condition of the settlement.

This act would also repeal the exemptions for discrimination based upon sexual orientation, gender

identity or expression.

     This act would take effect upon passage.

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