HomeMy WebLinkAboutMemo and Draft Nondiscrimination Ordinance 1
Nondiscrimination Ordinance for Bozeman
I. Introduction
The Draft Ordinance that accompanies this Memorandum is meant to be a
starting point for the formal discussion of the contents of a potential Bozeman
Nondiscrimination Ordinance. We should first discuss whether we want to pass an NDO and why. Then we should discuss its contents. Therefore, please note that this Memorandum is not meant to address the reasons for or against the
passage of an NDO, rather it is to articulate what an NDO might look like so as to
make the discussion more concrete.
This Draft began as an amalgam of provisions expressed in other Montana city ordinances. The goal was to learn from and improve upon other communities’ efforts. Where appropriate in the discussion, alternative provisions of the Helena,
Missoula, and Butte ordinances are considered or noted. In addition, this
Memorandum contains suggestions of other persons and groups, without
attribution, where I deemed it appropriate to the discussion. In that sense I take sole responsibility for the content of the Memorandum.
This Draft is the product of hours of public testimony, my meetings with local
church leaders, with local business persons, and input from a number of interested
lawyers, all of whom represent differing points of view on this issue. The thrust
of the Draft Ordinance and this Memorandum is to address the main content interests, concerns and worries of all of the groups, consistent with fulfilling the
purposes of an NDO.
At times I have included language suggested by others, but not included in the
Draft Ordinance. I have done this to illustrate ideas of what might be in the
Ordinance, so that we may have a more robust discussion.
II. Summary of the Draft Ordinance
The Draft Ordinance creates a remedy, within the City of Bozeman, for the
victims of discriminatory hiring practices, discrimination in the providing of
public accommodations, and/or housing discrimination. The remedy is an action
in our Municipal Court for civil remedies which include money damages as well
as injunctive and other appropriate relief. While the Draft Ordinance covers groups that are traditionally protected by state statute and federal statute, its
purpose is to add protection for discriminatory practices because of an
individual’s sexual orientation, gender identity, and/or gender expression. The
Draft specifically exempts religious organizations/associations and private
religious schools as to hiring practices and in the provision of public accommodations.
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III. The Policy Issues Raised by This Ordinance
a. Is the Proposed Scope of Religious Exemption in Hiring Appropriate?
The Draft Ordinance contains two places where organized religions
and religious schools are exempted from the nondiscrimination
requirements in hiring. There is a general clause in the “Purpose and Intent” section and our Ordinance exempts “religious associations” as long
as they are non-profit and not organized for the primary purpose of
providing public accommodations and/or services. (Definitions (3)) This
latter clause is contained in the Draft for the purpose of making it clear
that the Ordinance is not intended to interfere with or be involved in the organized practice of religion. Thus, within the confines of religious
organizations and schools, otherwise discriminatory hiring practices are
exempted by the Draft.
In the opinion of some this clause does not create a greater exemption
than the other general clause. It is meant to be a clarifier. Some religious organizations assert that their doctrine states that gay people are
committing a sin. They argue that it would be inconsistent with their
doctrine to hire gay people as church leaders, or as religious school
teachers or administrators. The Draft is designed to exempt these groups
from a claim of discrimination in their hiring practices. Others would argue that this exemption clause goes too far, because
some religious school employees’ job descriptions have no relationship to
religious doctrine, for example landscapers or janitors. The response from
the religious school people is that every employee is expected to promote
the religious message throughout their job performance. Alternative language has been suggested by some. The alternative is
to add an additional clause, “Notwithstanding anything in this chapter,
private schools and other organizations, based, in whole or in part, on
religious faith, shall be free to make employment decisions consistent
with their faith.” I did not include the above language in the Draft because it seems
unnecessary in light of other clauses as to schools and religious
institutions and because the “other organizations” language makes this
version of the exemption ambiguously broader. I have proposed language
that exempts all hiring practices, because I believe it is best for the City to not engage in the complicated act of defining language that differentiates
between the roles of various employees of religious organizations.
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b. Is the Scope of Religious Exemption for Public Accommodations Appropriate?
i. Religious Institutions
The Draft Ordinance contains two places where religious
associations and religious schools are exempted from the prohibition of
discrimination in public accommodations. Again there is a general
exemption clause in the “Purpose and Intent” section of the Draft Ordinance. In addition, the Definitions 9(c) excludes a church or other
religious association with exceptions (see 9(a)). The Draft also excludes a
private educational institution with a curriculum based in whole or in part
upon religious faith. (Definitions 9(d))
These exclusions are broader and clearer (I believe) than the Butte, Helena, and Missoula ordinances, because there is specific reference to
religious institutions and religious schools. In addition, the other
ordinances might be interpreted to exclude religious institutions with more
than one hundred members, whereas this Draft only applies a one hundred
member rule to include institutions and clubs that are otherwise private. (Definitions 9 (b))
Some examples of what the public accommodation exclusion might
mean: 1) A local religious school opens a talent show to the public. A
group wants to perform a “comedy” skit parodying the religious belief of
the school that marriage can only exist between a man and a woman. The school may refuse to allow the skit. 2) A church, the doctrine of which
opposes gay unions, rents its gathering areas for wedding receptions. That
church could refuse to rent the area if requested for a reception to
commemorate/celebrate a gay union.
In public testimony before the City Commission, many have expressed the concern that religious associations and schools would be impacted by
the ordinance and hence religious freedom would be curtailed. The
purpose of the Draft’s public accommodation exclusions are to make it
clear that religious associations and schools are not governed by the
Ordinance in their provision of public accommodations, as long as the primary purpose of their activity is religious.
ii. Other Organizations
Note, the “100” rule in Definitions 9 (b) still applies to private fraternal organizations etc. This is meant to reflect the difference between
private clubs that operate as if they were in the public sphere. It is thought
that the Draft should protect religious groups who are operating in public,
but that it should not protect other groups that do not have a faith-based
purpose in their actions. For instance, one would not want to encourage the creation of fraternal clubs, as a means to discriminate in the sphere of
public accommodations.
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iii. Private Businesses and Sincere Religious Beliefs
While not in the Draft, additional language has been proffered to
extend the exemptions in the Draft Ordinance to commercial activities. The language would exempt private businesses or business people from
the nondiscrimination statute if their creative/artistic skills are requested in
a situation that is contrary to their sincere religious beliefs and/or when
their actions would appear to endorse the activity to which they are
contributing. The typically cited situations include bakers baking a cake to celebrate a gay union, photographers at gay weddings, etc. The
additional exemption distinguishes creative acts from non-expressive
actions. Perhaps, the easiest distinguishing example is that a baker cannot
refuse a birthday cake to someone who happens to be gay, but can refuse
to bake a cake that contains a message such as “God bless the marriage of John and James”.
The proffered language is as follows: “Notwithstanding anything in
this chapter, no person shall be liable for discriminatory conduct
when that person refuses to create or promote a message that violates
that persons sincerely held religious beliefs. This exemption does not create a right to refuse service in non-expressive businesses, such as restaurants or grocery stores. Nor does it create a right to refuse service in hotels or other places of accommodation where the owner
does not reside. This exemption is limited to the offer of expressive
services and only when creating, or giving voice to the requested message would violate the sincerely held religious beliefs of the person being asked to create or give voice to the message.” The above issue is being litigated in several places across the country.
Most recently, the US Supreme Court declined to hear a case (Elane Photography) of a New Mexico photographer who was found to violate a state Human Rights Act when refusing to photograph a gay commitment ceremony. The US Supreme Court let stand the New Mexico Court of
Appeals (highest court in New Mexico) case that affirmed application of
the state Human Rights Act to this circumstance.
The US Supreme Court is presently considering the Hobby Lobby case. This case involves the mandates of the Affordable Care Act as they
relate to contraception and religious beliefs, so it may or may not be
instructive on the issue of applicability of NDO’s to commercial activities.
The Draft Ordinance does not include the proffered commercial
exemption because of a basic policy consideration that has existed since the Civil Rights Act of 1964. I express it as: When someone opens their
business to the public they are agreeing to open it and its services to all
persons without discrimination. The purpose of our Draft is to prevent
such discrimination within the boundaries of our City. Such conduct is
not welcoming, nor is it within the culture of Bozeman to permit some people to put signs on the doors of their businesses that explain, “We will
not provide creative services to gay people if those services violate our
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sincerely held religious beliefs.” Nor should we permit action with the
same result, even if the message is more subtly conveyed. Perhaps worse,
is the firm, but polite, explanation, after a person has come to a place of
business to procure its services, that a sincerely held religious belief prevents the providing of the otherwise available service.
c. Should College Dormitories and Other Post-Secondary School
Housing be Exempted from Housing Discrimination Prohibition?
At the request of others and with my support, dormitory rooms are
exempted in post-secondary institutions from the Housing Discrimination
provisions of the Draft. (Definitions 6) There are a variety of possibilities
in how college dormitories are set up, and it seems appropriate for the City
to let the colleges, etc. figure out this issue without the fear of challenge, on the City level, that one configuration or another is unequal and
therefore discriminatory.
It has also been requested that religious colleges etc. be exempted from
the provisions of the Ordinance for the purposes of allowing such
institutions to refuse married student housing to same sex couples. The proposed language is: “Notwithstanding anything in this chapter, no
faith-based university, college, or other post-secondary school shall be subject to civil or criminal penalties for discrimination because it
declines to offer married student housing to same-sex couples,
regardless of whether those couples are legally married, if offering such housing would cause it to violate its doctrinal tenets.” I did not
include this language since it goes so far as to cover persons who are
validly married under the laws of other states and it represents an
exemption when a post-secondary institution is involved in housing, albeit
only students of the institution.
d. Should Locker rooms, Changing areas and Bathrooms be Treated as Public Accommodations?
The bathroom/locker room issue seems to have caused the greatest differences in the Montana ordinances. Traditionally, bathrooms are
considered to be public accommodations, in most discrimination statutes.
For the purposes of this discussion regarding public accommodations
locker rooms and changing areas are considered to be bathrooms. There is
very little state law on the issue of restriction of entry to bathrooms, etc.. MCA 49-2-404 states that “Separate lavatory, bathing, or dressing
facilities based on the distinction of sex may be maintained for the purpose
of modesty or privacy.” Note the use of the word “may” and the
ambiguity of the word “sex.” Of course, crimes involving indecent
exposure, etc. apply inside and outside of all bathrooms. Essentially, there are two discussion points in this issue. First, if
bathrooms and locker rooms are included in an ordinance as public
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accommodations, can the ordinance be used to require a private business,
covered by the ordinance, to reconstruct bathrooms or build new
bathrooms, in order to comply with the Ordinance. Second, what is the
appropriate gender for persons who are transgendered or in the process of transgendering, and how should gender be determined.
The Draft Ordinance considers the first issue by specifically stating
that the Ordinance does not require any entity to construct new facilities to
comply with the Ordinance. (Provision prohibiting Public Accommodation
discrimination) After much thought and discussion I have left the word “bathroom” in
the definition of public accommodations. The end result of leaving the
word in will be that those organizations not exempted by the statute will
not be able to prevent transgender women from using the “Women”’s
room and transgender men from using the “Men”’s This result is probably no different than what happens already. Realistically, leaving
the bathroom’s designation to a given business owner is no different under
either circumstance unless one imagines an “anatomy-check” at the door--
-unlikely and unseemly. Including bathroom in the public
accommodations section frees business owners from the need to enforce a solution which is likely unenforceable.
If the Draft did not have the word “bathroom” in the definition of
public accommodation, one could argue that the situation is working itself
out well enough now, and that there is no realistic legislative language to
solve it. The transgender female, dressed in female attire, will enter a “Women” bathroom, and the bathroom would run like a bathroom. The
“problem” raised by those that oppose any NDO is that in some situations
a transgender female, dressed like a female, with breasts, will
inadvertently expose a penis to the surprise and consternation of other
females using the bathroom or locker room. Such occurrences are noted to be rare, and, when compared to the alternative, less problematic.
For example, Helena’s NDO contains the following language, “…in
any place of public accommodation where users ordinarily appear in
the nude, users may be required to use the facilities designated for their anatomical sex, regardless of their gender identity.” Helena Ordinance 1-8-4. This approach seemingly directs transgender females
who have penises to use the men’s locker room---despite the fact that they
may appear to be female while clothed. This would create a much more
dangerous situation for these transgender people. More importantly, based
upon the general practices of transgender people, there is no likely danger from transgender women to other women using a women’s room or from
transgender men to men using a men’s room.
The other objection, voiced in public testimony is that male predators
will sneak into the “Women” and, when caught, falsely claim that they are
transgender. All laws regarding predators, indecent exposure, etc. are in full force and unaffected by the Draft Ordinance. It should also be noted
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that several local experts have weighed in on this issue and have stated
that this is not a likely or known problem.
e. What Should be Included in the Remedy Section
i. Money Damages and Injunctive Relief
The Draft Ordinance creates a private right of action in Municipal
Court. The right may be asserted by anyone who seeks to prove that there has been prohibited discrimination against him/her within the City of
Bozeman. The remedies are monetary damages, if proven, up to the
jurisdictional limit of the Municipal Court ($12,000.) and other relief such
as an injunction to prevent future discrimination. There are no criminal
remedies. Helena requires all discriminatees to file a Complaint with the State
Human Rights Bureau and exhaust (go the whole way through the
process) their remedies before filing suit in the Municipal Court. That
Bureau is an administrative body that will investigate a claim and issue an
opinion as to its merits. It often offers an inexpensive way to discuss and solve claims that could then avoid court. At this time it appears that the
Human Rights Bureau can consider transgender claims, but it is not clear
that they can or will consider sexual orientation claims. The current Draft
Ordinance only requires submission of claims to the Human Rights
Bureau that are “…specifically addressed by Montana State Law”. This difference with the Helena ordinance is meant to not force
discriminatees or defenders to jump through an administrative hoop that
may be of no help to the pursuit of their claim or the defense against it.
ii. Attorney Fees
The Draft Ordinance contains a clause awarding attorney fees to the
prevailing party. This clause is common in discrimination statutes. It
encourages well-founded claims by awarding attorney fees in addition to
the actual loss, and it discourages frivolous claims because a losing plaintiff would have to pay attorney fees to the defendant.
iii. No Criminal Provisions
The Draft Ordinance contains no criminal provisions, unlike the versions of Butte and Missoula. Those cities create a misdemeanor
criminal liability that can be prosecuted by the City Attorney for any
persons who have been found to have committed discrimination under
their ordinances three or more times within a twelve month period. The
misdemeanor penalty does not include imprisonment.
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I believe that a civil and private action on discrimination claims will be
an appropriate remedy. If necessary, we can add a criminal provision in
the future.
IV. Conclusion
I have attempted to summarize the main issues in the Draft NDO. I have
attempted to focus on the language and its purpose. I do not mean to avoid
the political discussions that are a necessary part of this decision. We have
heard the public testimony as to why we should and why we should not
consider an Ordinance, and we determined that we would consider one. The Draft is intended to be a starting point for the discussion as to whether
Bozeman should pass an NDO and what it should be. I hope that the ideas of
what it might be will further inform the discussion as to whether it should be.
Carson
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Page 1 of 4
ORDINANCE NUMBER ________
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, AMENDING
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN THAT BOZEMAN
MUNICIPAL CODE TITLE BE AMENDED AS FOLLOWS:
Section 1.
Title
Illegal Discrimination
Sections:
Purpose and Intent Definitions
Employment discrimination prohibited Discrimination in public accommodations prohibited
Housing discrimination prohibited Retaliation prohibited
Posting of notices Violation – Penalty and Civil Remedy
Purpose and Intent. The City of Bozeman intends that no person shall be denied his or her civil
rights or be discriminated against based upon his or her actual or perceived race, color, national origin, ancestry, religion, creed, sex, age, marital or familial status, physical or mental disability, sexual
orientation or gender identity or expression. The city commissioners declare that such discrimination prohibitions are necessary and desirable because existing state and federal laws regarding discrimination
do not adequately address all discriminatory acts reported by the city’s diverse residents. Therefore, the city deems it necessary to adopt local regulations adapted to the needs of its citizens. Nothing in this
Chapter is intended to alter or abridge other rights, protections, or privileges secured by state or federal law, including state and federal constitutional protections of freedom of speech and exercise of religion.
Pursuant to subsection §7-1-111(3) MCA the provisions of the ordinance do not apply to or affect “the public school system.
Definitions. As used in this chapter, unless the context requires otherwise, the following
definitions apply:
(1) “Discrimination,” “discriminate” or “discriminatory” means any act, policy, or practice that has the effect of unfavorably subjecting any person to different or separate treatment because of his or her
actual or perceived race, color, national origin, ancestry, religion, creed, sex, age, marital or familial status, physical or mental disability, sexual orientation, gender identity or expression, or
association with a person or group of people so identified, or on the belief that a person has a particular sexual orientation or gender identity or expression, even if that belief is incorrect.
(2) “Employee” means an individual employed by an employer.
(3) “Employer” means an employer of one or more persons or an agent of the employer but excludes a
fraternal, charitable, or religious association or corporation if the association or corporation is
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organized neither for private profit nor has as its primary purpose the provision of accommodations or services that are available on a non-membership basis.
(4) "Employment agency" means a person undertaking to procure employees or opportunities to work.
(5) “Gender identity or expression” means a gender-related identity expression, or behavior,
regardless of the individual’s sex at birth.
(6) “Housing accommodation” means a building or portion of a building, whether constructed or to be constructed, that is or will be used as the home, domicile, residence, or sleeping quarters of its
occupants. It does not include dormitories or other sleeping quarters provided by universities, colleges, or other post-secondary schools.
(7) “Labor organization” means an organization or an agent of an organization organized for the
purpose, in whole or in part, of collective bargaining, of dealing with employers concerning grievances or terms or conditions of employment, or of other mutual aid and protection of
employees.
(8) "Person" means one or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated employees'
associations, employers, employment agencies, organizations, or labor organizations.
(9) (a) "Public accommodation" means a place that caters to or offers its services, goods, or facilities to the general public subject only to the conditions and limitations established by law and
applicable to all persons. It includes without limitation a public inn, restaurant, eating house, hotel, roadhouse, place where food or alcoholic beverages or malt liquors are sold for consumption,
motel, soda fountain, soft drink parlor, tavern, nightclub, trailer park, resort, campground, barbering, cosmetology, electrology, esthetics, or manicuring salon or shop, bathroom, resthouse,
theater, swimming pool, skating rink, golf course, cafe, ice cream parlor, transportation company, or hospital and all other public amusement and business establishments.
(b) “Public accommodation” does not include an institution, club, or place of accommodation that
proves that it is by its nature distinctly private. An institution, club, or place of accommodation may not be considered by its nature distinctly private if it has more than 100 members, provides regular
meal service, and regularly receives payment for dues, fees, use of space, facilities, services, meals, or beverages, directly or indirectly, from or on behalf of nonmembers, for the furtherance of
trade or business. For the purposes of this definition, any lodge of a recognized national fraternal organization is considered by its nature distinctly private.
(c) “Public accommodation” does not include a church or other religious association or
corporation, except to the extent it maintains a place described in subsection (a) other than a bathroom.
(d) “Public accommodation” does not include a private educational institution with a curriculum
based in whole or in part upon religious faith.
(10) “Sexual orientation” means heterosexuality, bisexuality, or homosexuality.
Employment and labor discrimination prohibited. A. An employer shall not discriminate in the
employment, failure to hire, refusal to hire, compensation, work classification, terms, conditions, or privileges of employment, including promotion, demotion, or termination of employment.
B. An employer shall not fail or refuse to refer for employment, or give negative information to a
potential employer of an individual, in such a manner that would deprive or limit an individual’s
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employment opportunities or that would otherwise adversely affect an individual’s status as an applicant or prospective employee, for a discriminatory reason.
C. A labor organization shall not discriminate in limiting membership, conditions of membership, or
termination of membership of any person in any labor union or apprenticeship program.
D. An employment agency shall not discriminate in the procurement or recruitment of any person for possible employment with an employer.
Discrimination in public accommodations prohibited. A place of public accommodation shall not
deny, directly or indirectly, any person full and equal access or enjoyment of the goods, services, activities, facilities, privileges, advantages, and accommodations for a discriminatory reason. Nothing
contained herein shall be construed as a requirement to construct additional facilities such as bathrooms, locker rooms, dressing rooms at any place of public accommodation as defined above.
Housing discrimination prohibited. A person, owner, manager, employee, or any entity whose business includes engaging in any residential real estate related transactions shall not discriminate in the
sale, lease or rental of any housing facility, or to otherwise discriminate in the terms, conditions, maintenance, improvement or repair of any housing facility. The rental of individual rooms in a private
residence designed as a single dwelling unit in which the owner also resides is excluded from this section provided that the owner rents no more than three rooms within the residence.
Retaliation prohibited. A person shall not coerce, threaten, discharge, expel, blacklist, or otherwise retaliate against another person for opposing any practices prohibited by this chapter, making a
complaint, or assisting in an investigation or proceeding regarding an alleged violation of this chapter; nor shall any person require, request conspire with, assist, or coerce another person to retaliate against a
person for making a complaint or assisting in an investigation or proceeding.
Posting of notices. Every employer, business, or entity subject to this chapter shall post in a conspicuous location a notice stating, “Discrimination on the basis of actual or perceived race, color,
national origin, ancestry, religion, creed, sex, age, marital or familial status, physical or mental disability, sexual orientation, gender identity or expression is prohibited by the Bozeman Municipal Code.” Entities
subject to this chapter may provide the notice by posting it where employee notices are customarily placed.
Violation – Penalty. A. Any illegal discrimination specifically addressed by Montana State law
shall be submitted to the Montana Department of Labor pursuant to Title 49, Chapters 2 and 3, Montana Code Annotated for processing by the State of Montana.
B. Pursuant to sections 3-6-103 and 3-11-103 Montana Code Annotated violations of sections
through Bozeman Municipal Code not specifically addressed by Montana State law are to be civil municipal ordinance violations. Only the person claiming a violation of one or more these
sections, or that person’s authorized representative, may seek enforcement of this chapter through a civil proceeding within the exclusive jurisdiction of the Bozeman Municipal Court.
C. A person claiming a violation of this chapter may seek civil remedies, injunctive relief, attorney fees,
incurred in the bringing of said claim, or other equitable relief by petitioning the Bozeman Municipal Court. The Court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part
of the costs of suit. The Montana Rules of Civil Procedure shall apply, except and unless the Bozeman Municipal Court establishes alternative rules of civil procedure for matters within the
exclusive jurisdiction of the Bozeman Municipal Court.
D. The initiation of or granting of relief under a grievance procedure shall not preclude or limit any other claims or remedies available under this chapter.
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Section 2.
Severability. If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining
portions of this ordinance. The council of commissioners hereby declares that it would have passed this ordinance and each section subsection, sentence, clause, phrase, and words thereof, irrespective of the
fact that any one or more sections, subsections, sentences, clauses, phrases or words have been declared invalid or unconstitutional, and if for any reason this ordinance should be declared invalid or
unconstitutional, then the remaining ordinance provisions will continue in full force and effect.
Section 3.
Effective Date. This Ordinance shall be in full force and effect from and after thirty (30) days after its
passage.
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