063 of 2009 - Enacting Chapter 10.04 relating to unlawful discriminatory employment practices based on sexual orie 0 09-1
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SALT LAKE CITY ORDINANCE
NO. 63 of 2009
(Unlawful discrimination in employment practices based on sexual orientation and
gender identity)
An ordinance enacting new Chapter 10.04 Salt Lake City Code, relating to
unlawful discriminatory employment practices based on sexual orientation or gender
identity.
WHEREAS, Salt Lake City is comprised of diverse and varied groups,
communities and individuals;
WHEREAS, Salt Lake City values this diversity;
WHEREAS, the City Council concluded when it created the City's Human Rights
Commission (the "Commission") that discriminatory practices impede the social and
economic progress of the City by preventing all people from contributing to or fully
participating in the cultural, spiritual, social and commercial life of the community,
which is essential to the growth and vitality of the City's neighborhoods and businesses;
WHEREAS, the City Council created the Commission to advise the Council and
Mayor on nondiscrimination policy and authorized the Commission to make
recommendations on the best ways to improve human relations, to eliminate
discrimination and to secure full and equal participation based on the Commission's
research and factual data concerning the status and treatment of diverse populations;
WHEREAS, the Commission issued a comprehensive report on discrimination in
July 2009;
WHEREAS, the Commission recommended that the City adopt an ordinance
prohibiting discrimination in employment on the basis of race, ethnicity, national origin,
religion, age, gender, sexual orientation and gender identity and expression;
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WHEREAS, the Utah Antidiscrimination Act, Utah Code Section 34A-5-101 et
seq. addresses employment-related discrimination based on race; color; religion; sex;
pregnancy, childbirth, or pregnancy-related conditions; national origin; age (if over 40
years of age); and disability, but does not address employment-related discrimination
based on sexual orientation or gender identity;
WHEREAS, the Council has previously concluded that discrimination based on
sexual orientation and gender identity are among the forms of discrimination that
adversely affect the general welfare of the City and the vitality of its neighborhoods;
WHEREAS, Salt Lake City Code Section 2.53.035A prohibits Salt Lake City
employees from discriminating against an otherwise qualified employee or applicant
based on sexual orientation as well as race, color, national origin, sex, religion, age,
honorable or general service in the United States uniformed services, or disability;
WHEREAS, Utah Code Section 10-8-84(1) grants Salt Lake City the power to
"provide for the safety" of and to "promote the prosperity . . . and comfort and
convenience" of"the city and its inhabitants;"
NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah,
as follows:
SECTION 1. That Chapter 10.04, Salt Lake City Code, pertaining to
discriminatory practices in employment based upon sexual orientation and gender
identity, be and the same hereby is, enacted to read as follow:
CHAPTER 10.04
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EMPLOYMENT DISCRIMINATION
Sections:
10.04.010 Purpose
10.04.020 Administration
10.04.030 No Private Right of Action; No Special Rights
10.04.040 Severability
10.04.050 Definitions
10.04.060 Exemptions
10.04.070 Unlawful Employment Practices
10.04.080 Unlawful Intimidation, Retaliation, And Coercion
10.04.090 Procedures For Filing Complaints
10.04.100 Investigation
10.04.110 Conciliation
10.04.120 Disposition Of A Complaint
10.04.130 Offenses And Penalties
10.04.010 Purpose
Every individual in the City has the right to work and earn wages through gainful
employment. Discriminatory employment practices are detrimental because they impede
the social and economic progress of the City by preventing all of the City's citizens from
contributing to or fully participating in the cultural, spiritual, social and commercial life
of the community, which is essential to the growth and vitality of the City's
neighborhoods and businesses. The Utah Antidiscrimination Act, Utah Code Section
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34A-5-101 et seq., addresses employment related discrimination based on race; color;
sex; pregnancy; childbirth, or pregnancy-related conditions; religion; national origin; age
(if 40 years of age or older); and disability, but does not address discrimination based on
sexual orientation or gender identity.
The City has found that discrimination in employment on the basis of sexual
orientation and gender identity must be addressed. The denial or deprivation of
employment rights because of an individual's sexual orientation or gender identity is
detrimental to the health, safety, and welfare of the City's citizens and damages the City's
economic well-being. The purpose of this chapter is to provide a clear and
comprehensive mandate for the prevention and elimination of discrimination in
employment in the City against individuals based upon sexual orientation or gender
identity and this chapter shall be liberally construed to achieve that purpose.
10.04.020 Administration
The Mayor is responsible for administering and implementing this chapter.
10.04.030 No Private Right of Action; No Special Rights
This chapter does not create a private cause of action, nor does it create any right
or remedy that is the same or substantially equivalent to the remedies provided under
federal or state law. This chapter does not create any special rights or privileges which
would not be available to all of the City's citizens because every person has a sexual
orientation and a gender identity.
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10.04.040 Severability
If any section, sentence, paragraph, term, definition or provision of this chapter is
for any reason determined to be illegal, invalid, superseded by other authority or
unconstitutional by any court of competent jurisdiction or by any state or federal
regulatory authority having jurisdiction thereof, such portion shall be deemed a separate,
distinct, and independent provision and such determination shall have no effect on the
validity of any other section, sentence, paragraph, term, definition or provision of this
chapter, all of which will remain in full force and effect.
10.04.050 Definitions
In this chapter:
A. ADMINISTRATOR means the person designated by the Mayor to
receive, investigate, and conciliate complaints under this chapter and includes the
Administrator's designated representatives.
B. CITY means the city of Salt Lake City, Utah.
C. CITY ATTORNEY means the City's duly appointed City Attorney.
D. COMPLAINANT means a person, including the Administrator, who files
a complaint under this chapter.
E. CONCILIATION means the attempted resolution of issues raised in a
complaint filed under this chapter, or raised in the investigation of the complaint, through
informal negotiations involving the Complainant, the Respondent, and the Administrator.
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F. CONCILIATION AGREEMENT means a written agreement setting forth
the resolution of issues by conciliation under this chapter.
G. DISCRIMINATION means any direct or indirect exclusion, distinction,
segregation, limitation, refusal, denial, or other differentiation in the treatment of a person
because of a person's actual or perceived sexual orientation or gender identity or because
of a person's association with any such person. Discrimination shall not be interpreted to
require or to grant or accord preferential treatment to any person because of that person's
sexual orientation or gender identity.
H. EMPLOYEE means any individual applying with or employed by an
employer. The term does not include an elected official.
I. EMPLOYER means any person employing fifteen (15) or more
employees in the City for each working day in each of twenty (20) or more calendar
weeks in the current or preceding calendar year, and includes any agent of such a person.
J. EMPLOYMENT AGENCY means any person, and any agent of a person,
undertaking to procure employees or opportunities to work for any other person in the
City or holding itself out to be equipped to procure employees or opportunities to work
for any other person in the City.
K. GENDER IDENTITY means a person's actual or perceived gender
identity, appearance, mannerisms, or other characteristics of an individual with or without
regard to the person's sex at birth.
L. LABOR ORGANIZATION means any organization that exists for the
purpose in whole or in part of collective dealing with Employers concerning grievances,
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terms or conditions of employment; or other mutual aid or protection in connection with
employment.
M. MAYOR means the duly elected or appointed and qualified Mayor of Salt
Lake City.
N. OTHERWISE QUALIFIED means a person who possesses the following
required by an employer for any particular job,job classification, or position:
1. education;
2. training;
3. ability;
4. moral character;
5. integrity;
6. disposition to work;
7. adherence to reasonable rules and regulations; and
8. other job related qualifications required by an employer.
O. PERSON means one or more individuals, partnerships, associations,
corporations, legal representatives, trusts or trustees, receivers and the City.
P. RELIGIOUS ORGANIZATION means a religious corporation,
association, educational institution, society, trust or any entity or association which is a
wholly owned or controlled subsidiary or agency of any religious corporation,
association, society, trust or corporation sole.
Q. RESPONDENT means a person identified in a complaint as having
committed an unlawful practice under this chapter.
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R. SEXUAL ORIENTATION means a person's actual or perceived
orientation as heterosexual, homosexual, or bisexual.
S. UNLAWFUL PRACTICE means a discriminatory act or practice relating
to employment that is prohibited under this chapter.
10.04.060 Exemptions
This chapter does not apply to:
A. a religious organization;
B. an expressive association whose employment of a person protected by this
chapter would significantly burden the association's rights of expressive association
under Boy Scouts of America v. Dale, 530 U.S. 640 (2000); the United States
government, any of its departments or agencies, or any corporation wholly owned by it;
or
C. the United States government, any of its departments or agencies, or any
corporation wholly owned by it; or the State of Utah or any of its departments, agencies,
or political subdivisions except for the City.
10.04.070 Unlawful Employment Practices
A. Employers. An employer may not refuse to hire, promote, discharge,
demote, or terminate any person, and may not retaliate against, harass, or discriminate in
matters of compensation or in terms, privileges, and conditions of employment against
any person otherwise qualified because of a person's sexual orientation or gender
identity.
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B. Employment agencies. An employment agency may not refuse to list and
properly classify for employment, or refuse to refer a person for employment, in a known
available job for which the person is otherwise qualified because of a person's sexual
orientation or gender identity.
C. Labor organizations. A labor organization may not exclude any person
otherwise qualified from full membership rights in the labor organization, expel the
person from membership in the labor organization, or otherwise discriminate against or
harass any of the labor organization's members in full employment of work opportunity,
or representation, because of a person's sexual orientation or gender identity.
D. Training programs. An employer, labor organization,joint apprenticeship
committee, or vocational school, providing, coordinating, or controlling apprenticeship
programs, or providing, coordinating, or controlling on-the-job-training programs,
instruction, training, or retraining programs may not deny to, or withhold from, any
qualified person, the right to be admitted to, or participate in any apprenticeship training
program, on-the-job-training program, or other occupational instruction, training or
retraining program because of a person's sexual orientation or gender identity.
E. Notices and advertisements. Unless based upon a bona fide occupational
qualification, or required by and given to an agency of government for security reasons,
an employer, employment agency, or labor organization may not print, or circulate, or
cause to be printed or circulated, any statement, advertisement, or publication, use any
form of application for employment or membership, or make any inquiry in connection
with prospective employment or membership that expresses, either directly or indirectly
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any limitation, specification, or discrimination because of a person's sexual orientation or
gender identity.
It is unlawful for a joint labor-management committee controlling apprenticeship
or other training or retraining (including on-the-job training programs) to print or publish,
or cause to be printed or published, any notice or advertisement relating to admission to,
or employment in, any program established to provide apprenticeship or other training by
the joint labor-management committee that indicates any preference, limitation,
specification, or discrimination based on sexual orientation or gender identity.
Nothing in this chapter prohibits a notice or advertisement from indicating a
preference, limitation, specification, or discrimination based on sexual orientation or
gender identity when sexual orientation or gender identity is a bona fide occupational
qualification for employment.
F. No Preferential Treatment. Nothing in this chapter shall be interpreted
to require any employer, employment agency, labor organization, vocational school,joint
labor-management committee, or apprenticeship program subject to this chapter to grant
preferential treatment to any person because of the person's sexual orientation or gender
identity on account of an imbalance which may exist with respect to the total number or
percentage of persons of any sexual orientation or gender identity employed by any
employer, referred or classified for employment by an employment agency or labor
organization, admitted to membership or classified by any labor organization, or admitted
to or employed in, any apprenticeship or other training program, in comparison with the
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total number or percentage of persons of that sexual orientation or gender identity
available in the City's available work force.
10.04.080 Unlawful Intimidation, Retaliation, And Coercion •
It is unlawful for any person to discriminate against, harass, threaten, harm,
damage, or otherwise penalize another person for opposing an unlawful practice, for
filing a complaint, or for testifying, assisting, or participating in any manner in an
investigation, proceeding, or hearing under this chapter.
10.04.090 Procedures For Filing Complaints
A. Any person who claims to have been injured by an unlawful employment
practice subject to the City's jurisdiction under this Chapter may file a complaint with the
Administrator. A complaint may also be filed by the Administrator if the Administrator
has reasonable cause to believe that a person has committed an unlawful employment
practice. A complaint must be filed within 180 calendar days after an alleged unlawful
employment practice has occurred.
B. A complaint must be in writing on a form provided by the Administrator,
made under oath or affirmation, and contain the following information:
1. The Complainant's name, address, and signature;
2. The date the alleged unlawful employment practice occurred;
3. A statement of the facts upon which the allegation of an unlawful
employment practice are based; and
4. The Respondent's name and address.
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C. Promptly after the filing of a complaint, the Administrator shall:
1. provide the Respondent named in the complaint written notice that a
complaint alleging the commission of an unlawful employment
practice has been filed against the Respondent;
2. furnish a copy of the complaint to the Respondent; and
3. advise the Respondent of the Respondent's procedural rights and
obligations, including the right to file a written, signed, and verified
informal answer to the complaint within 15 days after service of notice
of the complaint.
D. Not later than the 15th day after service of the notice and copy of the
complaint, a Respondent may file an answer to the complaint. The answer must be in
writing, made under oath or affirmation, and contain the following information:
1. The Respondent's name, address, telephone number, and signature of
the Respondent or the Respondent's attorney, if any; and
2. A concise statement of facts in response to the allegations in the
complaint, including facts of any defense or exception.
10.04.100 Investigation
A. Upon the filing of a complaint, the Administrator shall commence an
investigation to determine the facts behind the complaint and whether there is reasonable
cause to believe the Respondent committed an unlawful employment practice, except that
no investigation may commence if, after reviewing the allegations of the complaint, the
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Administrator determines that the complaint does not come within the scope of this
chapter. Upon determining that a particular complaint does not come within the scope of
this chapter, the Administrator shall dismiss the complaint, notify the Complainant and
Respondent and take no further action.
B. In connection with any investigation of a complaint filed under this
chapter, the Administrator shall seek the voluntary cooperation of any person to:
1. obtain access to premises, records, documents, individuals, and any
other possible source of information;
2. examine, record, and copy necessary materials; and
3. take and record testimony or statements of any person reasonably
necessary for the furtherance of the investigation.
C. The Administrator may request the City Recorder to issue an executive
branch subpoena or subpoena duces tecum to compel the attendance of a witness or the
production of relevant materials or documents pursuant to Chapter 2.59 of the City Code.
For purposes of Section 2.59.020A, the Administrator shall be deemed the Mayor's
designee.
D. The Administrator may dismiss a complaint during the investigation and
prior to referral to the City Attorney if the Administrator determines that:
1. the complaint was not filed within the required time period;
2. the location of the alleged unlawful employment practice is
not within the City's jurisdiction;
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3. the employer does not employ a sufficient number of
employees in the City to meet this chapter's jurisdictional
requirements;
4. the alleged unlawful employment practice is not a violation of
this chapter;
5. the Complainant refuses to cooperate with the Administrator in
the investigation of the complaint or enforcement of an
executed conciliation agreement;
6. the Complainant cannot be located after the Administrator has
performed a reasonable search; or
7. a conciliation agreement has been executed by the
Complainant and Respondent.
10.04.110 Conciliation
A. During or after the investigation, but subsequent to the mailing of the
notice of the complaint to the Respondent, the Administrator shall, if the Respondent
appears to have committed an unlawful employment practice, attempt to conciliate the
complaint. In conciliating a complaint, the Administrator shall try to achieve a just
resolution and obtain assurances that the Respondent will satisfactorily remedy any
violation of the Complainant's rights and take action to ensure the elimination of both
present and future unlawful employment practices. A conciliation agreement may
include: sensitivity training for the Respondent and/or the Respondent's employees; the
Respondent's agreement to adopt and pursue a policy of non-discrimination in
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employment practices; and the Respondent's agreement to not engage in discriminatory
practices in the future.
B. A conciliation agreement executed under this section must be in writing in
a form approved by the City Attorney and must be signed and verified by the Respondent
and the Complainant, subject to approval of the Administrator who shall indicate
approval by signing the agreement.
C. If a Respondent voluntarily enters into a conciliation agreement, the
Administrator shall immediately dismiss the complaint.
10.04.120 Disposition Of A Complaint
A. If, upon completion of an investigation of a complaint, the Administrator
determines that an unlawful employment practice has occurred and is unable to secure an
acceptable conciliation agreement from the Respondent, then the Administrator shall
refer the case to the City Attorney. The Administrator shall refer the entire file to the
City Attorney, who shall determine how best to pursue further action, if any, on the
complaint.
B. If the City Attorney determines that cause exists to find that an unlawful
employment practice occurred and the facts are sufficient to warrant the initiation of an
action in justice court, then the City Attorney shall provide written notification to the
Respondent and the Complainant that an action to enforce this chapter may be initiated in
justice court. If the City Attorney determines that there is no cause that an unlawful
employment practice occurred or that the facts are insufficient to warrant the initiation of
an action in justice court, the City Attorney shall provide written notification to the
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Respondent and the Complainant and notify the Administrator who shall then dismiss the
complaint.
10.04.130 Offenses And Penalties
A person violates this chapter if the person engages in any action made unlawful
by this chapter. An offense committed under this chapter by an employer employing fifty
(50) or fewer employees is punishable by a civil fine of not more than $500.00. An
offense committed under this chapter by an individual employing fifty-one (51) or more
employees or by an employment agency or labor organization is punishable by a civil
fine of not more than $1,000.00.
SECTION 2. That new Section 10.02.110C, Salt Lake City Code, pertaining to
an annual report by the City's Human Rights Commission, be and the same hereby is
enacted to read as follows:
C. Beginning September 30, 2010, the commission shall prepare an annual
report for the Mayor and City Council assessing the effectiveness of the City's actions in
implementing Chapters 10.04 and 10.05 of this Title.
SECTION 3. This ordinance shall take effect on April 2, 2010.
Passed by the City Council of Salt Lake City, Utah this 10th day of November , 2009.
CHAIRPERSO
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ATTEST:
(144 • •
CITY REC RDER ., ,y, y'$
./f,„: - , toi
Transmitted to Mayor on 11/17/09 \li-E�`SE L,
Mayor's Action: ` Approved. Vetoed.
MAYOR
ATTEST:
CITY REC ER APPROVED AS TO FORM
Salt Lake City Attorney's Office
(SEAL) Date jj. 16-of _
B
Bill No. 63 of 2009.
Published: 11/21/09 .
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