Wyoming Fair Employment Practices Act

27-9-102. Definitions.

(a) "Court" shall mean the district court in and for the judicial district of the state of Wyoming in which the asserted unfair employment practice occurred, or, if said court be not in session at that time, then any judge of said court.

(b) "Employer" shall mean the state of Wyoming or any political subdivision or board, commission, department, institution or school district thereof, and every other person employing two (2) or more employees within the state; but it does not mean religious organizations or associations.

(c) "Unfair employment practice" shall mean those practices specified as discriminatory or unfair in W.S. 27-9-105.

(d) As used in W.S. 27-9-101 through 27-9-106, "department" means the department of employment and the term "director" means the director of the department or his designee who is authorized to administer W.S. 27-9-101 through 27-9-106.

27-9-104. Powers and duties of department of employment.

(a) The department shall have the following powers and duties:

(i) To call upon any state agency, institution, or employee, for advice, counsel, and assistance in the enforcement of this article;

(ii) To adopt, publish, amend, and rescind regulations consistent with and for the enforcement of this article;

(iii) To receive, investigate, and determine the validity of complaints alleging discrimination in employment or the existence of a discriminatory or unfair employment practice;

(iv) To hold hearings upon any complaint made against a person, an employer, an employment agency, a labor organization, or the employees or members thereof, and to administer oaths and take the testimony of any person under oath;

(v) For the purposes of all investigations the department shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any books, papers, documents or records which the department deems relevant or material to the inquiry;

(vi) In case of disobedience to a subpoena the department may invoke the aid of any district court in the state in requiring the attendance and testimony of witnesses and the production of documentary evidence. Any failure to obey the order of the court may be punished by the court as a contempt of court;

(vii) To enter into agreements, exchange information and otherwise assist the equal employment opportunity commission, and to accept from the equal employment opportunity commission reimbursement for services rendered.

(b) The department shall contract with an independent hearing officer to conduct any hearing under W.S. 27-9-101 through 27-9-108.

27-9-105. Discriminatory and unfair employment practices enumerated; limitations.

(a) It is a discriminatory or unfair employment practice:

(i) For an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation or the terms, conditions or privileges of employment against, a qualified disabled person or any person otherwise qualified, because of age, sex, race, creed, color, national origin, or ancestry or pregnancy;

(ii) For a person, an employment agency, a labor organization, or its employees or members, to discriminate in matters of employment or membership against any person, otherwise qualified, because of age, sex, race, creed, color, national origin, or ancestry or pregnancy, or a qualified disabled person;

(iii) For an employer to reduce the wage of any employee to comply with this chapter;

(iv) For an employer to require as a condition of employment that any employee or prospective employee use or refrain from using tobacco products outside the course of his employment, or otherwise to discriminate against any person in matters of compensation or the terms, conditions or privileges of employment on the basis of use or nonuse of tobacco products outside the course of his employment unless it is a bona fide occupational qualification that a person not use tobacco products outside the workplace. Nothing within this paragraph shall prohibit an employer from offering, imposing or having in effect a health, disability or life insurance policy distinguishing between employees for type or price of coverage based upon the use or nonuse of tobacco products if:

(A) Differential rates assessed employees reflect an actual differential cost to the employer; and

(B) Employers provide written notice to employees setting forth the differential rates imposed by insurance carriers.

(b) The prohibitions against discrimination based on age in this section apply only to persons at least forty (40) years of age.

(c) It is not a discriminatory practice for an employer, employment agency or labor organization to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no employee benefit plan shall excuse the failure to hire any individual, and no seniority system or employee benefit plan shall require or permit involuntary retirement of any individual protected under this chapter because of age. Involuntary retirement is not prohibited if permitted under Title 29, United States Code 631(c).

(d) As used in this section "qualified disabled person'" means a disabled person who is capable of performing a particular job, or who would be capable of performing a particular job with reasonable accommodation to his disability.

27-9-106. Filing of complaint; determination; appeal for hearing.

(a) Any person claiming to be aggrieved by a discriminatory or unfair employment practice may, personally or through his attorney, make, sign and file with the department within six (6) months of the alleged violation a verified, written complaint in duplicate which shall state the name and address of the person, employer, employment agency or labor organization alleged to have committed the discriminatory or unfair employment practice, and which shall set forth the particulars of the claim and contain other information as shall be required by the department. The department shall investigate to determine the validity of the charges and issue a determination thereupon.

(b) through (j), repealed by Act 106 (H.B. 239), L. 2001, effective July 1, 2001.

(k) If the employer, employment agency, labor organization or employee is aggrieved by the department's determination, the aggrieved party may request a fair hearing. The fair hearing shall be conducted pursuant to the Wyoming Administrative Procedure Act.

(m) The department shall issue an order within fourteen (14) days of the decision being rendered, requiring the employer, employment agency or labor organization to comply with the hearing officer's decision. If the employer, employment agency or labor organization does not timely appeal or comply with the order within thirty (30) days, the department may petition the appropriate district court for enforcement of the order.

(n) Where the hearing officer determines that the employer, employment agency or labor organization has engaged in any discriminatory or unfair employment practice as defined in this chapter, the hearing officer's decision may:

(i) Require the employer, employment agency or labor organization to cease and desist from the discriminatory or unfair practice;

(ii) Require remedial action which may include hiring, retaining, reinstating or upgrading of employees, referring of applications for employment by a respondent employment agency or the restoration to membership by a respondent labor organization;

(iii) Require the posting of notices, the making of reports as to the manner of compliance and any other relief that the hearing officer deems necessary and appropriate to make the complainant whole; or

(iv) Require the employer, employment agency or labor organization to pay backpay or front pay.

Equal Pay

27-4-301. Definitions.

(a) "Employee" means any individual employed by an employer.

(b) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee.

(c) "Employ" includes to suffer or permit to work.

(d) "Occupation" includes any industry, trade, business or branch thereof, or any employment or class of employment.

(e) "Director" means the director of the department of employment or his designee who is authorized to administer W.S. 27-4-301 through 27-4-304.

(f) "Person" includes one (1) or more individuals, partnerships, corporations, associations, legal representatives, trustees, trustees in bankruptcy or receivers.

27-4-302. Prohibition on paying employees less for same work.

(a) No employer shall discriminate, within the same establishment in which the employees are employed, between employees on the basis of gender by paying wages to employees at a rate less than the rate at which the employer pays wages to employees of the opposite gender for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions, except where the payment is made pursuant to:

(i) A seniority system;

(ii) A merit system;

(iii) A system which measures earning by quantity or quality of production; or

(iv) A differential based on any other factor other than gender.

27-4-303. Liability of employer generally; liquidated damages; individual and group actions; assignment of claim.

(a) An employer who violates the provisions of W.S. 27-4-302 shall be liable to the employee or employees affected in the amount of their unpaid wages, and in an additional equal amount as liquidated damages. Action to recover liability may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of the employee or the employees and other employees similarly situated, and no agreement by the employee to work for less than the wage to which the employee is entitled under this act shall be a defense to any action.

(b) Upon receipt of a written claim by any employee of a violation of this act, the director shall process, investigate and determine the validity of the claim. The director shall have power to join various claims against the same employer in one (1) claim. If either the employer or employee is aggrieved by the director's determination, the aggrieved party may request a fair hearing. The aggrieved party must file a written request for hearing within fifteen (15) calendar days of receipt of the director's determination. Upon receipt of a timely submitted request for hearing, the director shall appoint an independent hearing officer to conduct the fair hearing between the employer and employee. The fair hearing shall be conducted pursuant to the Wyoming Administrative Procedure Act. The hearing officer's determination shall constitute the director's final agency action. Upon a finding by the hearing officer that the claim is valid, the director shall order the employer to pay the amount of wages due plus an additional equal amount as liquidated damages. Where the employer failed to appeal an adverse determination to the district court and failed to comply with the director's order, the director shall refer the matter to the appropriate county attorney for enforcement of the director's order.

27-4-304. Penalty for violations.

Any employer who willfully violates any provision of this act, or who discharges or in any other manner discriminates against any employee because the employee has made any complaint to his employer, the director or any other person, or instituted, or caused to be instituted any proceeding under or related to this act, or has testified or is about to testify in the proceedings, shall, upon conviction, be punished by a fine of not less than twenty-five dollars ($25.00), nor more than two hundred dollars ($200.00), or by imprisonment for not less than ten (10) days nor more than one hundred eighty (180) days, or by both the fine and imprisonment. Each day a violation continues shall constitute a separate offense.

Discrimination Against Military Service Personnel

Sec. 19-11-104. [Uniformed service members; Discrimination prohibited].

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform or has an obligation to perform service in an uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service application for service or obligation.

(b) An employer shall be considered to have denied a person initial employment, reemployment, retention in employment, promotion or a benefit of employment in violation of this section if the person's membership, application for membership, service, application for service or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, performance of service, application for service or obligation.

(c) An employer may not discriminate in employment against or take an adverse employment action against any person because such person has taken an action to endorse a protection afforded any person under this act, has testified or otherwise made any statement in or in connection with any proceeding under this act, has assisted or otherwise participated in an investigation under this act or has exercised a right provided for in this act. The prohibition provided for in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services and shall apply to any position of employment, including a position that is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.