HomeMy WebLinkAboutResolution No. 4243, Protection from Discrimination.pdf1
Commission Memorandum
REPORT TO: Bozeman City Commission
FROM: Chris Kukulski, City Manager
Patricia J. Berg, Human Resources Director
Greg Sullivan, City Attorney
SUBJECT: Resolution #4243: Protection from Discrimination Based on Actual or
Perceived Sexual Orientation and Gender Identity in Employment and
Benefits.
MEETING DATE: February 8, 2010
AGENDA ITEM TYPE: Action
RECOMMENDATION: We recommend you:
1. Consider the proposed Resolution 4243 (Attachment A) relating to the development of policies
and implementation strategies to address discrimination, including discrimination on the basis
of sexual orientation and gender identity and, if desired, move to adopt.
2. Consider a motion to direct other quasi-independent City boards, such as the Library Board
and Parking Commission, and the Business Improvement Districts to adopt these policies.
BACKGROUND: On January 11, 2010, the City Commission moved to: “Direct staff to
develop policies and implementation strategies to prohibit discrimination in City employment,
benefits and programs and services on the basis of sexual orientation and/or gender identity". The
motion was subsequently amended “to explicitly refer to the staff memo [from January 11, 2010]
on page 7 starting with Human Resources/Employment Policy Statements, employee benefits, and
contracts.” Staff drafted proposed Resolution 4243 for your consideration to fulfill this direction.
For background material on this issue, please refer to the Commission Memorandum from January
11, 2010 which is included as Attachment B.
Introduction to Resolution 4243: As proposed, Resolution 4243:
1. Integrates sexual orientation and gender identity into the existing categories for which
discrimination is currently prohibited;
2. Includes definitions of the terms "gender identity" and "sexual orientation";
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3. Prohibits the City of Bozeman from discriminating in employment based on actual or
perceived sexual orientation or gender identity. This protection applies to all the City's
employment actions which may include but are not limited to hiring, promotion, demotion,
selection for training, and in the provision of benefits;
4. Expands the City's anti-harassment training program to include the prohibition of
discrimination on the basis of actual or perceived sexual orientation or gender identity;
5. Requires the City to conduct an audit to ensure all those currently covered by the City's health
insurance program are eligible under the most recent program documents provided by the
Montana Municipal Interlocal Authority (MMIA); and
6. Requires staff to research the feasibility, costs and tax consequences of providing COBRA-
type benefits to domestic partners and report back to the Commission before the open
enrollment period of May/June 2010.
Contracts: We recognize your motion from January 11, 2010 included specific direction to provide you
with a policy statement and implementation strategies for ensuring the City does not discriminate on the
basis of sexual orientation and gender identity in contracting. During the process of developing these
policies and strategies we recognized several challenges to adopting such policies. As such, we have not
included policies and strategies related to contracts in Resolution 4243. Instead, we provide the
following discussion as background and ask you provide more specific direction regarding how to
ensure the City does not discriminate in contracting.
As you consider the following options, please consider whether any distinction should be made between
purchasing and contracting.
Over the past month we have discussed this approach and feel there are several approaches you could
take to fulfill the January 11th motion. As such, we provide options that range for "strict" compliance to
"best efforts." The options are discussed here:
Option A (Strict): "All City collective bargaining agreements, contracts, leases, licenses, and
other agreements of every kind, including agreements for professional services and sole source
services, shall include a provision prohibiting discrimination in the fulfillment of the agreement on
the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or
perceived sexual orientation, gender identity or disability. The provision shall clearly indicate that
the contracting entity will ensure this obligation pertains to the hiring and treatment of the
contractor's employees, to the contractor's purchasing of materials and equipment related to the
contract, and to all subcontracts. The above requirement shall apply to all purchases of goods
regardless of amount wherein the City enters into a written agreement for the purchase.
All requests for proposals (RFP), requests for qualifications (RFQ) and all other notices soliciting
bids for construction, services, or any other contract shall include a provision requiring every
submitting entity to affirm it will not discriminate as described above and recognizing the eventual
contract will prohibit discrimination as described above. If an entity submitting a bid on a project
does not affirm in its submittal that it will comply with this requirement, the City shall consider
the submitter non-responsive.
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Agreements for the expenditure of public funds which include a legal anti-discrimination
requirement other than that required by the City must include the discrimination provision
required by the federal or state law, as appropriate."
Analysis of Option A:
This option requires all City contracts and agreements to contain a provision prohibiting
discrimination in the exercise of the contract. This option also requires the contractor to ensure the
contractor will not discriminate in the hiring of its employees and in the purchasing of goods
related to the contract. Furthermore, this option would require the contractor to ensure all
subcontracts it enters into would contain the same provision.
Option A also addresses Requests for Proposals (RFP) and Requests for Qualifications (RFQ) and
requires all those submitting bids to affirm they will not discriminate and recognize the eventual
contract will contain provisions as described above or else the City will consider the submittal
non-responsive.
Finally, Option A contains a provision indicating that where state or federal law requires a specific
discrimination provision that provision must be included in the contract rather than the City's
provision.
While Option A provides the greatest assurance that the expenditure of City tax dollars will not
result in discrimination, this option could result in several challenges. First, Option A will result in
increased staff time at the letting of contracts because the City enters into many "boilerplate" type
contracts, especially for general services such as repair and maintenance of office equipment. The
result is that service agreement would need to be altered by the City at the time they are entered
into. Certainly, this challenge can be overcome through prior planning and organization.
Second, Option A may result in some contractors deciding to no longer do business with the City
of Bozeman whether because they disagree with the policy or they are not able to ensure they have
controls in place to ensure discrimination does not occur. Currently, we have no direct evidence
this may occur but is certainly a possibility. Related is the challenge that Option A may result in
increased costs to the City if contractors wish to continue to do business with the City but
determine they must put in place controls to ensure discrimination does not occur.
Finally, Option A may require the City to increase its oversight of contracts including the general
business practices of contractors. At this time, the City's oversight of a contract does not generally
include inquiry into performance of the contractor's business operations. Incorporating a strict
standard such as Option A may result in such an inquiry. However, it must be noted this inquiry
would only occur should the City obtain credible evidence that discrimination has occurred. The
remedies the City would take if discrimination was occurring would be based on the specific
circumstances and are difficult to anticipate.
Option B (Best efforts to enter into contract): "All City departments shall use their best efforts
to ensure all collective bargaining agreements, contracts, leases, licenses, and other agreements of
every kind, including agreements for professional services and sole source services, include a
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provision prohibiting discrimination in the fulfillment of the agreement on the basis of race, color,
religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation,
gender identity or disability. If possible, the agreement should indicate the contracting entity must
ensure this obligation pertains to the hiring and treatment of the contractor's employees, to the
contractor's purchasing of materials and equipment related to the contract, and to all subcontracts.
All City departments shall use best efforts to ensure the above requirement applies to all purchases
of goods regardless of amount wherein the City enters into a written agreement for the purchase.
All requests for proposals (RFP), requests for qualifications (RFQ) and all other notices soliciting
bids for construction, services, or any other contract shall include a provision informing every
submitting entity the City will use its best efforts to ensure the selected entity will not discriminate
as described above and recognizing that the City will use its best efforts to ensure the eventual
contract will prohibit discrimination as described above.
Agreements for the expenditure of public funds which include a legal anti-discrimination
requirement other than that required by the City must include the discrimination provision required
by the federal or state law, as appropriate."
Analysis of Option B:
This option takes a different approach that recognizes the above described challenges to Option A.
The language of this approach is almost identical to that of Option A but requires City departments
to use "best efforts" when entering into agreements to ensure those agreements contain the required
discrimination provision. "Best efforts" means "diligent attempts to carry out an obligation. As a
standard, a best efforts obligation is stronger than a good-faith obligation." Black's Law
Dictionary, 7th Ed. West Publishing. Thus, City staff must enter into discussions with potential
contractors to include the required discrimination provisions. If the desired contractor refuses, the
staff should decline to engage the contractor unless no other contractor is available to do the work
at the budgeted for price. This option includes a best efforts provision for lettering RFP and RFQs.
Like Option A, this option has its challenges. First and most obvious, this option does not require
the discrimination provision be included in every agreement. Second, as with Option A, this option
requires staff to spend additional time negotiating, if necessary, with contractors to include the
discrimination provisions.
Obviously, this option would allow the City to continue to work with a contractor if the contractor
refused to adopt the provision and that contractor, considering all other qualifications, was still the
desired contractor.
As with Option A, if the provision is adopted the challenge of ensuring adequate oversight would
exist the same as described above under Option A.
Option C (Best efforts for contracts over $50,000). "All City departments shall use their best
efforts to ensure all collective bargaining agreements, contracts, leases, licenses, and other
agreements of every kind, including agreements for professional services and sole source services,
that exceed $50,000 ($20,000 for architectural, engineering, or surveying services) include a
provision prohibiting discrimination in the fulfillment of the agreement on the basis of race, color,
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religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation,
gender identity or disability. If possible, the agreement should indicate the contracting entity must
ensure this obligation pertains to the hiring and treatment of the contractor's employees, to the
contractor's purchasing of materials and equipment related to the contract, and to all subcontracts.
All City departments shall use best efforts to ensure the above requirement applies to the purchase
of goods that, in the aggregate from a single vendor in a fiscal year, exceed $50,000.
All requests for proposals (RFP), requests for qualifications (RFQ) and all other notices soliciting
bids for construction, services, or any other contract shall include a provision informing every
submitting entity the City will use its best efforts to ensure the selected entity will not discriminate
as described above and recognizing that the City will use its best efforts to ensure the eventual
contract will prohibit discrimination as described above.
Agreements for the expenditure of public funds which include a legal anti-discrimination
requirement other than that required by the City must include the discrimination provision required
by the federal or state law, as appropriate."
Analysis of Option C:
This option is almost identical to that of Option B except that the requirement to use best efforts to
include a provision would apply only to certain agreements over $50,000 or $20,000 as
appropriate.
The above three options are intended to provide a framework and starting point for the development of a
detailed policy. Staff will be available to assist in your deliberations regarding contracting on Monday
evening.
FISCAL EFFECTS: At this point it is not possible to determine the specific fiscal impacts of
establishing these polices. We do, however, believe many of the strategies incorporated in the
Resolution will have minimal fiscal impact, if any. These include incorporating sexual orientation and
gender identity into the City's anti-discrimination provisions as well as into the City's hiring practices.
It is reasonable to assume, however, that additional costs may be incurred in conducting an audit of the
enrollment in the health benefits program. If MMIA agrees to conduct the audit the costs to the City will
be minimal. If the City conducts a self-audit, it will do so with City staff if possible.
As for group health insurance, it is unclear at this time whether additional employees will request
domestic partners be covered. If so, the costs of covering domestic partners would be treated the same as
adding any dependent.
As stated above, the challenges regarding incorporating a discrimination provision in all City contracts
are also difficult to anticipate. As you provide more specific direction on contracts and purchasing we
will be able to more clearly identify the fiscal impacts.
ALTERNATIVES: As suggested by the City Commission.
Attachments:
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Attachment A: Resolution 4243;
Attachment B: Commission Memorandum for January 11, 2010
Report compiled on: February 4, 2010.
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COMMISSION RESOLUTION NO. 4243
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA DECLARING IT TO BE THE POLICY OF THE CITY OF BOZEMAN THAT
THE CITY WILL NOT DISCRIMINATE IN EMPLOYMENT AND BENEFITS ON THE
BASIS OF SEXUAL ORIENTATION AND/OR GENDER IDENTITY.
WHEREAS, in November, 2009, the City of Bozeman passed and adopted Commission
Resolution Number 4217 declaring "All are welcome here", and committing to 1) support the diversity
of the community, 2) promote inclusiveness in our public endeavors and private actions; and 3) work to
end silence and stop the spread of hate, and in so doing build just and caring communities,
congregations, workplaces, schools and homes; and
WHEREAS, the City's current employment practices do not discriminate on the basis of actual or
perceived sexual orientation or gender identity but the City has yet to formally adopt a policy stating
such;
WHEREAS, currently, individuals who have experienced discrimination based on actual or
perceived sexual orientation or gender identity have no access to remedies or procedures under federal
or state employment laws;
WHEREAS, Congress is considering the Employment Non-Discrimination Act (EDNA) of 2009,
whose purposes include:
(1) To address the history and widespread pattern of irrational discrimination on the basis
of actual or perceived sexual orientation or gender identity by private sector employers and
local, state and federal government employers; and to
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(2) Provide meaningful and effective remedies for employment discrimination on the basis
of actual or perceived sexual orientation or gender identity.
WHEREAS, EDNA would make it an unlawful employment practice for an employer to:
(1) refuse to hire or to discharge any individual, or otherwise discriminate against any
individual with respect to the compensation, terms, conditions, or privileges of employment
of the individual, because of such individual’s actual or perceived sexual orientation or
gender identity; or to
(2) limit, segregate, or classify employees or applicants for employment of the employer in
any way that would deprive or tend to deprive any individual of employment or otherwise
adversely affect the status of the individual as an employee, because of such individual’s
actual or perceived sexual orientation or gender identity.
WHEREAS, on January 11, 2010, the Bozeman City Commission directed staff to develop
policies and implementation strategies to prohibit discrimination in City employment, benefits and
programs and services on the basis of actual or perceived sexual orientation or gender identity;
NOW THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana:
Section 1
Definitions: For purposes of this Resolution:
o The term ‘sexual orientation’ means homosexuality, heterosexuality, or bisexuality.
o The term ‘gender identity’ means the gender-related identity, appearance, or mannerisms
or other gender-related characteristics of an individual, with or without regard to the
individual’s designated sex at birth.
Section 2
Actions to be taken:
o The City will not discriminate on the basis of race, color, religion, creed, sex, age,
marital status, national origin, political ideas, or perceived or actual disability, sexual
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orientation or gender identity in the development or implementation of any City program,
service, or function;
o The City’s Anti-Discrimination Policy Statement will be expanded to prohibit
discrimination based on actual or perceived sexual orientation or gender identity
(Attachment A-1);
o The Employment Anti-Discrimination Policy Statement found in Section II of the City of
Bozeman Employee Handbook and the General Policy statement found in Section IV,
Recruitment and Selection Procedures of the City of Bozeman Employee Handbook will
be amended to prohibit discrimination based on actual or perceived sexual orientation or
gender identity. (Attachment A-2);
o The Employee Benefits policy found in Section VII of the City of Bozeman’s Employee
Handbook will be revised to formally include same sex and opposite sex domestic
partners as 'eligible dependents' and therefore entitled to coverage under the City’s health
insurance program. (Attachment A-3). The City will also create the Affidavit of
Domestic Partnership, which is required by the City’s insurance carrier for the City to
offer domestic partner benefits;
· The City will develop a complaint procedure similar to City's Sexual Harassment
complaint procedure providing for the reporting and resolution of allegations of
discrimination based on actual or perceived sexual orientation or gender identity;
· The City's anti-harassment training program will be expanded to include the prohibition
of discrimination on the basis of actual or perceived sexual orientation or gender identity;
· The City will ask their insurance administrator to conduct an audit with the purpose of
ensuring that all covered participants are eligible for coverage under the City's health
insurance policy and if this is not possible the City will conduct a self-audit to ensure all
participants are eligible under the program;
· City staff will research the feasibility, costs and tax consequences of providing COBRA-
type benefits to domestic partners and will report back to the Commission before the
open enrollment period of May/June 2010.
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Passed and adopted this 8th day of February, 2010.
________________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_________________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
__________________________________________
GREG SULLIVAN
City Attorney
Attachments:
A-1: City of Bozeman Employment Anti-Discrimination Policy
A-2: City of Bozeman Employee Handbook Anti-Discrimination Provisions
A-3: City of Bozeman Employee Handbook, Section VIII, Employee Benefits
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Attachment A-1:
City of Bozeman, Montana
Employment Anti-Discrimination Policy
The City of Bozeman does not discriminate against any employee or applicant for employment
because of race, color, religion, creed, sex, age, marital status, national origin, political ideas, or
perceived or actual disability, sexual orientation or gender identify. This relates to all aspects of
employment, and to the use of all facilities and participation in all City-sponsored activities.
This policy does not preclude discrimination based on bona fide occupational qualifications or
other recognized exceptions under the law.
To insure the disabled are not discriminated against, the City will make reasonable
accommodations needed to enable qualified disabled employees to satisfactorily perform the
essential functions of their position. Such accommodations might include rearranging furniture,
providing special equipment such as a taller desk or limited job restructuring.
As an employee of the City of Bozeman, you are entitled to work in an environment free of
discrimination. Racial, sexual or ethnic remarks or slurs and other forms of harassment are not
tolerated. If you feel you have been treated unfairly, notify your Supervisor, the Human
Resources Director, or both. There are procedures available to address your concerns. The very
nature of harassment makes it impossible to detect unless the person being harassed promptly
reports it.
In the event discrimination occurs, you are protected against retaliation for lawfully opposing
discrimination. This protection includes filing an internal grievance, initiating an external
administrative or legal proceeding or testifying in or participating in any of the above.
Each Supervisor of the City supports and encourages the City's Anti-Discrimination Policies and
attempts to be aware of, and take appropriate steps to correct, any improper employee actions.
The City of Bozeman assigns responsibility for coordinating the City’s Equal Employment
Opportunity Program to the City’s Human Resources Director, and the responsibility for
attaining the Equal Opportunity goals to the City Manager and his/her Department Heads.
_____________________________ _____________
Chris A. Kukulski, City Manager Date
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Attachment A-2:
City of Bozeman Employee Handbook
Anti-Discrimination Provisions
Section II. Employment Policies Page 1 of 4 Pages
Effective Date: 7/1/97 Revision Date: February, 2010
Employment Anti-Discrimination Policies
The City of Bozeman does not discriminate against any employee or applicant for employment
because of race, color, religion, creed, sex, age, marital status, national origin, political ideas, or
on the basis of perceived or actual disability, sexual orientation or gender identity. This relates
to all aspects of employment, and to the use of all facilities and participation in all City-
sponsored activities. This policy does not preclude discrimination based on bona fide occupa-
tional qualifications or other recognized exceptions under the law.
As an employee of the City of Bozeman, you are entitled to work in an environment free of
discrimination. Racial, sexual or ethnic remarks or slurs and other forms of harassment are not
tolerated. If you feel you have been treated unfairly, notify your Supervisor, the Human
Resources Director, or both. There are procedures available to address your concerns. The very
nature of harassment makes it impossible to detect unless the person being harassed promptly
reports it.
Each supervisor of the City supports and encourages the City's anti-discrimination policies and
attempts to be aware of, and take appropriate steps to correct, any improper employee actions.
The Human Resources Department is responsible for administering this policy.
Section IV. Recruitment and Selection Page 1 of 2 Pages
Effective Date: 7/1/97 Revision Date: February, 2010
General Policy
Under the direction of the City Commission, the City Manager has the authority to hire,
discipline, manage and fire City personnel. The City Manager may, in turn, delegate this
responsibility to the City's Department Heads and Supervisors. In cooperation with the
Department Heads and Supervisors, the Human Resources Department administers and
coordinates the hiring process for all position vacancies.
The City's recruitment and selection procedures are designed to make sure all applicants are
treated equally and without regard to race, color, religion, creed, sex, age, marital status, national
origin, political ideas or perceived or actual disability, sexual orientation or gender identity. The
process for filling vacant or new positions is summarized below. Refer to your collective
bargaining agreement for further information.”
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Attachment A-3
City of Bozeman Employee Handbook
Section VIII, Employee Benefits
VIII. Employee Benefits Page 1 of 2 Pages
Effective Date: 7/1/97 Revision Date: February, 2010
Employee benefits are provided to employees based on the availability of funds. The City's
benefit package may be changed at any time. All employees affected by any change, whether it
increases or decreases the benefits, may receive a notice of the change. A brief description of
employee benefits follows. You should refer to your collective bargaining agreement, or contact
the Human Resources Department, for more information.
Medical, Dental and Life, Vision and Prescription Benefits
The City makes medical, dental and life, vision, and prescription insurance benefits available for
its employees, retirees and dependents as provided for in the most recent version of the Montana
Municipal Interlocal Authority’s Plan Document/Summary Plan Description for the City of
Bozeman.
In addition to the list of dependents identified in the MMIA Plan Document who meet the
“Required Eligibility Conditions”, an eligible employee or retiree may enroll a Domestic Partner,
regardless of gender, if that Domestic Partner is named in an Affidavit of Domestic Partnership
that meets the criteria established in the Affidavit and is approved by the Human Resources
Director.
A “Domestic Partner” means a person who meets the following criteria:
1. Neither partner is or has been for the past six months, married, legally separated, a
cohabiter or a Domestic Partner to another;
2. The partners have cohabitated for at least six months and continue to cohabitate;
3. The partners are at least 18 years of age and mentally competent to consent to contract
and mentally competent to execute the required Affidavit;
4. The partners are not related by blood to a degree that would bar marriage in the State
of Montana;
5. The partners are each other’s sole Domestic Partner and intend to remain so
indefinitely; and
6. The partners are responsible for each other’s common welfare and have a financial
interdependent relationship evidenced by any of the following:
A. Mutually granted financial or health care powers of attorney;
B. Designation of each other as primary beneficiary in wills, life insurance policies
or retirement plans;
C. Executed a joint least, mortgage or deed; or
D. Have joint ownership of a banking account.
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Enrollment and coverage information is available through the Human Resources Department,
and is provided to all eligible employees at orientation. Employees terminating their
employment, and those who are undergoing a reduction in hours, or entering a Leave Without
Pay status, should also contact Human Resources to learn about extending their health and dental
insurance coverage.
Employees are required to notify Human Resources, in writing, of any changes in dependent
status, such as separation or dissolution in a marriage, events which indicate a employee’s
domestic partnership is no longer valid birth or adoption of a dependent, within fifteen (15)
working days of the date the change occurs. Failure to do so may result in disciplinary action.
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