HomeMy WebLinkAboutFinally Adopt Ordinance 1890 prohibiting Discrimination on Sexual Orientation and Gender Identity Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Greg Sullivan, City Attorney
SUBJECT: Final Adoption of Ordinance 1890 Prohibiting Discrimination on the Basis of Sexual Orientation and Gender Identity or Expression
MEETING DATE: June 2, 2014
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Consider the attached ordinance prepared for final adoption based on
amendments made May 12, 2014 and determine whether to adopt the ordinance. The adoption of this ordinance is a legislative act.
SUGGESTED MOTION: Should the Commission determine to move forward to finally adopt
ordinance 1890, and if the item is removed from the consent agenda I suggest the Commission consider
the following motion: “Having considered public testimony, I move to finally adopt Ordinance 1890.” Amendments to the ordinance should be made by standard Commission practice.
BACKGROUND: On May 12, 2014 the Commission held a public hearing on provisional adoption
of Ordinance 1890. During that meeting the Commission provisionally adopted the ordinance making
several amendments by motion. I attached to this memorandum a reference only version of the ordinance that shows the Commission’s amendments to the draft ordinance provided to the Commission
on May 12th. I have also attached a clean version for final adoption that includes the amendments made
by the Commission. It is this version that I suggest be the subject of the Commission’s action.
For more background on this ordinance please refer to the memorandum I prepared for you for provisional adoption. I also attached the motions made by the Commission on May 12th.
UNRESOLVED ISSUES: None.
ALTERNATIVES: As directed by the Commission.
FISCAL EFFECTS: None anticipated at this time.
Attachments: Ordinance 1890 (changes from the 5/12/14 ordinance shown in strikeout/underline) Ordinance 1890 (for final adoption) Motions from 5/12 provisional adoption Report compiled on: May 21, 2014
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Ordinance 1890
Page 1 of 11
ORDINANCE NO. 1890
For reference purposes only showing amendments made on 5/12
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA PROHIBITING DISCRIMINATION ON THE BASIS OF ACTUAL OR
PERCEIVED SEXUAL ORIENTATION OR GENDER IDENTITY OR EXPRESSION,
CREATING A CAUSE OF ACTION IN THE BOZEMAN MUNICIPAL COURT,
AUTHORIZING THE MUNICIPAL COURT TO FASHION CIVIL REMEDIES
INCLUDING INJUNCTIVE RELIEF, AND CREATING A TIME LIMIT UNDER
WHICH A CLAIM MAY BE FILED, AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City of Bozeman has adopted self-government powers as those powers
are enumerated in its Charter, and the laws and Constitution of the State of Montana; and
WHEREAS, Article 1.01 of the City of Bozeman Charter states the City shall have all
powers possible for a city with self-governing powers to have under the Constitution and laws of
the State of Montana as fully and completely as though they were specifically enumerated in the
Charter; and
WHEREAS, the City’s powers include but are not limited to its police power which is its
fundamental authority to enact laws on behalf of the health, safety, and general welfare of its
citizens; and
WHEREAS, pursuant to Article XI, Section 6 of the Montana Constitution a local
government unit adopting a self-government charter may exercise any power not prohibited by
the Constitution, law, or charter; and
WHEREAS, Section 7–1–106, MCA, provides the City’s power and authority are to be
liberally construed, with every reasonable doubt as to the existence of the City’s power or
authority resolved in favor of the power or authority's existence.
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NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
That the table of contents for Chapter 24 be revised to add Article 10 (Unlawful Discrimination)
reserving Article 9, as follows:
Chapter 24 OFFENSES, MISCELLANEOUS PROVISIONS
ARTICLE 1. - IN GENERAL
ARTICLE 2. - MUNICIPAL INFRACTIONS
ARTICLE 3. - OFFENSES AGAINST GOVERNMENTAL FUNCTIONS
ARTICLE 4. - OFFENSES AGAINST PROPERTY
ARTICLE 5. - OFFENSES AGAINST PUBLIC PEACE
ARTICLE 6. - OFFENSES AGAINST PUBLIC MORALS
ARTICLE 7. - OFFENSES AGAINST PUBLIC SAFETY
ARTICLE 8. - OFFENSES CONCERNING UNDERAGE PERSONS
ARTICLE 9. – RESERVED
ARTICLE 10. – UNLAWFUL DISCRIMINATION
Section 2
That a new Article be added to Chapter 24, Bozeman Municipal Code to read as follows:
“Article 10. Unlawful Discrimination.
Section 24.10.010 Legislative Findings
Section 24.10.020 Policy, Purpose and Intent
Section 24.10.030 Definitions
Section 24.10.040 Employment and labor discrimination prohibited
Section 24.10.050 Discrimination in public accommodations prohibited
Section 24.10.060 Housing discrimination prohibited
Section 24.10.070 Retaliation prohibited
Section 24.10.080 Violation/Civil Remedy
201
Ordinance No. 1890, Prohibiting Unlawful Discrimination
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24.10.010. Legislative Findings.
The city commission hereby finds:
A. The matter of discrimination against the city’s inhabitants and visitors is a matter of
concern to the residents, visitors, and businesses of the city.
B. The city has a compelling governmental interest in eliminating discrimination within the
city and assuring its citizens equal access to publicly available goods and services. This
interest includes providing its citizens a community where all persons, regardless of
actual or perceived race, color, national origin, ancestry, religion, creed, sex, age, martial
or familial status, physical or mental disability, sexual orientation, or gender identity or
expression have a fair and equal opportunity to participate in the business and
professional life of the city, and may be unfettered in availing themselves of opportunities
for employment, housing, and public accommodations.
C. Archaic and overbroad assumptions about the relative needs and capacities of individuals
based on sexual orientation or gender identity or expression force those individuals to
labor under stereotypical notions that often bear no relationship to their actual abilities. It
thereby both deprives persons of their individual dignity and denies society the benefits
of wide participation in political, economic, and cultural life.
D. Although state and federal laws have been enacted to eliminate discrimination in
employment, housing, and public accommodations on the basis of race, creed, religion,
color, sex, physical or mental disability, age and national origin, it is evident that lesbian,
gay, bisexual, and transgender individuals within the city have not attained equal
opportunity in housing, public accommodations, and employment. A barrier to the
advancement of lesbian, gay, bisexual, and transgender individuals in their personal and
professional lives within the city is the potential discriminatory practices of employers
and providers of public accommodations and housing on the basis of actual or perceived
sexual orientation and gender identity or expression. While the vast majority of
employers, housing providers, and places of public accommodations within the city
certainly do not discriminate on the basis of actual or perceived sexual orientation and
gender identity or expression, evidence of discriminatory practices exists within the city
making it difficult for some lesbian, gay, bisexual, or transgender individuals to find
satisfactory housing, obtain employment, and enjoy public accommodations free from
discriminatory practices.
E. Discrimination on the basis of actual or perceived sexual orientation and gender identity
or expression impacts many citizens of the city and has an especially harmful impact to
young residents and visitors to the city who may be lesbian, gay, bisexual, or transgender,
because it may force them to move from the city, not choose to attend university in the
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Ordinance No. 1890, Prohibiting Unlawful Discrimination
Page 4 of 11
city, may impact their participation in the democratic process, and may impact their
ability to fully and freely identify themselves as they seek employment, housing and the
services and products provided by public accommodations.
F. Discrimination in employment has and will prevent the gainful employment of citizens of
the city addressed by this article and may create breaches of the peace, impose added
burdens upon the public for relief and welfare, and cause citizens, including youth, to
seek employment elsewhere.
G. Discrimination in housing makes it difficult for persons addressed in this article to find
housing in close proximity to urban services, educational facilities, in price ranges that
are within their earning ability, and may cause citizens to seek housing outside of the
city.
H. Discrimination in places of public accommodation is economically harmful to a
prosperous community and is otherwise detrimental to the welfare and economic growth
of the city and may cause citizens to seek public accommodations outside of the city.
I. The recognition of religious liberty and the rights of freedom of association and
expression is necessary to balance the civil rights of all residents of the city; as such,
provisions within this article related to fraternal, charitable, and religious organizations
are intended to ensure a balanced approach to protecting civil rights of all citizens of the
city so that the protections afforded by this article do not unreasonably impede upon a
fraternal, charitable, or religious organization’s ability to engage in activities protected by
law or to disseminate its preferred views.
J. Creation of a private cause of action in the municipal court is necessary to effectuate the
purpose of this article because a private cause of action will have a greater likelihood of
ensuring compliance with this article than enforcement by the city due to the lack of
available city resources. In addition, a private cause of action creates a viable mechanism
for deterring discrimination throughout the city, empowers an individual most affected by
a violation of this article to decide for themselves whether to seek relief rather than to
rely on the authority of city officials, and promotes the dignity of an individual by
assuring that the harmed individual receives the relief they desire for the injuries suffered.
24.10.020. Policy, Purpose and Intent.
A. It is declared to be the policy of the City, in the exercise of its police powers pursuant to
its self governing authority for the protection of the public health, safety, and general
welfare, and for the maintenance of peace and good government, to assure equal
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Ordinance No. 1890, Prohibiting Unlawful Discrimination
Page 5 of 11
opportunity to all persons, free from restrictions and discrimination because of his or her
actual or perceived race, color, national origin, ancestry, religion, creed, sex, age, martial
or familial status, physical or mental disability, sexual orientation, or gender identity or
expression.
B. The city commission declares that, in addition to the right to be free from discrimination
on the basis of race, color, national origin, ancestry, religion, creed, sex, age, martial or
familial status, physical or mental disability, the right to be free from discrimination on
the basis of actual or perceived sexual orientation or gender identity or expression is
recognized as and hereby declared to be a civil right. Adding such discrimination
prohibitions on the basis of actual or perceived sexual orientation or gender identity or
expression to the city’s laws is 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.
C. The provisions of this article shall be liberally construed for accomplishment of its
policies and purposes; provided that, however, nothing in this article 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, freedom of
association, and exercise of religion or to infringe upon or alter the authority vested by
law in the Montana Human Rights Commission, the federal Equal Employment
Opportunity Commission, or any other federal or state agency having jurisdiction over
discriminatory practices.
D. Pursuant to subsection §7-1-111(3), MCA, the provisions of the article do not apply to or
affect the public school system.
24.10.030. Definitions.
As used in this article, unless the context requires otherwise, the following definitions apply:
A. “Aggrieved party” means a person who can demonstrate a specific personal and legal
interest, as distinguished from a general interest, and who has been or is likely to be
specially and injuriously affected by a violation of this article.
B. “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 sexual orientation, gender identity or expression,
or association with a person or group of people so identified, or on the belief that a person
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has a particular sexual orientation or gender identity or expression, even if that belief is
incorrect.
C. “Employee” means an individual employed by an employer.
D. “Employer” means an employer of one or more persons or an agent of the employer but
excludes a fraternal or religious association, religious school, or religious corporation if
the association, school, or corporation is neither organized for private profit nor has as its
primary purpose the provision of accommodations or services that are available on a non-
membership basis.
E. "Employment agency" means a person undertaking to procure employees or opportunities
to work.
F. “Gender identity or expression” means a gender-related identity expression, or behavior,
regardless of the individual’s sex at birth.
G. “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.
H. “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.
I. "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.
J.
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,
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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 or a private educational institution with a curriculum based in whole
or in part upon religious faith, except to the extent it maintains a place described
in subsection (a), unless the service, goods or facilities are being provided for a
purpose which is primarily religious in nature.
d. 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.
K. “Sexual orientation” means heterosexuality, bisexuality, or homosexuality.
24.10.040. 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 employment opportunities or that would otherwise adversely
affect an individual’s status as an applicant or prospective employee, for a discriminatory
reason.
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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.
24.10.050. 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.
24.10.060. 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.
24.10.070. Retaliation prohibited.
A person shall not coerce, threaten, discharge, expel, blacklist, or otherwise retaliate against
another person for opposing any practices prohibited by this article, making a complaint, or
assisting in an investigation or proceeding regarding an alleged violation of this article; nor shall
any person require, request to conspire with, assist, or coerce another person to retaliate against a
person for making a complaint or assisting in an investigation or proceeding under this article.
24.10.080. Violation/Civil Remedy.
A. Any unlawful discrimination 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.
B. Violations of sections 24.10.040 through 24.10.070 unless otherwise subject to Montana
State law, are to be civil municipal ordinance violations within the exclusive jurisdiction
of the Bozeman municipal court. The Montana Rules of Civil Procedure shall apply,
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except and unless the municipal court establishes alternative rules of civil procedure for
matters within the exclusive jurisdiction of the municipal court.
C. An aggrieved party or its authorized representative claiming a violation of this article
may seek civil remedies, injunctive relief, or other equitable relief against a person
alleged to have committed discrimination by petitioning the bozeman municipal court.
The municipal court is hereby authorized to determine appropriate remedies including but
not limited to injunctive relief. Any aggrieved party claiming a violation of this article
shall seek such relief within:
1. 180 days after the alleged unlawful discriminatory practice occurred or was
discovered;
2. If the aggrieved party has initiated efforts to resolve the dispute addressed in the
petition by filing a grievance in accordance with any grievance procedure
established by a collective bargaining agreement, contract, or written rule or
policy, the petition may be filed within 180 days after the conclusion of the
grievance procedure if the grievance procedure concludes within 120 days after
the alleged unlawful discriminatory practice occurred or was discovered; or
3. If the grievance procedure does not conclude within 120 days, the petition must
be filed within 300 days after the alleged unlawful discriminatory practice
occurred or was discovered.
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 article.
E. The prevailing party in a proceeding pursuant to this article may bring an action in the
municipal court for attorney fees and costs and the municipal court may, in its discretion,
allow the prevailing party reasonable attorney fees and costs.
Section 3
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances
of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full
force and effect.
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Section 4
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full
force and effect.
Section 5
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 6
Codification.
This Ordinance shall be codified as indicated in Section 1 and 2.
Section 7
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
#### End of Ordinance except for signatures ####
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PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the _____ day of ________________,
201_.
____________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
____________________________________
STACY ULMEN, CMC
City Clerk
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of
____________________, 201_. The effective date of this ordinance is __________, __, 201_.
_________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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Page 1 of 11
ORDINANCE NO. 1890
Final Adoption June 2, 2014
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA PROHIBITING DISCRIMINATION ON THE BASIS OF ACTUAL OR
PERCEIVED SEXUAL ORIENTATION OR GENDER IDENTITY OR EXPRESSION,
CREATING A CAUSE OF ACTION IN THE BOZEMAN MUNICIPAL COURT,
AUTHORIZING THE MUNICIPAL COURT TO FASHION CIVIL REMEDIES
INCLUDING INJUNCTIVE RELIEF, AND CREATING A TIME LIMIT UNDER
WHICH A CLAIM MAY BE FILED, AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City of Bozeman has adopted self-government powers as those powers
are enumerated in its Charter, and the laws and Constitution of the State of Montana; and
WHEREAS, Article 1.01 of the City of Bozeman Charter states the City shall have all
powers possible for a city with self-governing powers to have under the Constitution and laws of
the State of Montana as fully and completely as though they were specifically enumerated in the
Charter; and
WHEREAS, the City’s powers include but are not limited to its police power which is its
fundamental authority to enact laws on behalf of the health, safety, and general welfare of its
citizens; and
WHEREAS, pursuant to Article XI, Section 6 of the Montana Constitution a local
government unit adopting a self-government charter may exercise any power not prohibited by
the Constitution, law, or charter; and
WHEREAS, Section 7–1–106, MCA, provides the City’s power and authority are to be
liberally construed, with every reasonable doubt as to the existence of the City’s power or
authority resolved in favor of the power or authority's existence.
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NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
That the table of contents for Chapter 24 be revised to add Article 10 (Unlawful Discrimination)
reserving Article 9, as follows:
Chapter 24 OFFENSES, MISCELLANEOUS PROVISIONS
ARTICLE 1. - IN GENERAL
ARTICLE 2. - MUNICIPAL INFRACTIONS
ARTICLE 3. - OFFENSES AGAINST GOVERNMENTAL FUNCTIONS
ARTICLE 4. - OFFENSES AGAINST PROPERTY
ARTICLE 5. - OFFENSES AGAINST PUBLIC PEACE
ARTICLE 6. - OFFENSES AGAINST PUBLIC MORALS
ARTICLE 7. - OFFENSES AGAINST PUBLIC SAFETY
ARTICLE 8. - OFFENSES CONCERNING UNDERAGE PERSONS
ARTICLE 9. – RESERVED
ARTICLE 10. – UNLAWFUL DISCRIMINATION
Section 2
That a new Article be added to Chapter 24, Bozeman Municipal Code to read as follows:
“Article 10. Unlawful Discrimination.
Section 24.10.010 Legislative Findings
Section 24.10.020 Policy, Purpose and Intent
Section 24.10.030 Definitions
Section 24.10.040 Employment and labor discrimination prohibited
Section 24.10.050 Discrimination in public accommodations prohibited
Section 24.10.060 Housing discrimination prohibited
Section 24.10.070 Retaliation prohibited
Section 24.10.080 Violation/Civil Remedy
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24.10.010. Legislative Findings.
The city commission hereby finds:
A. The matter of discrimination against the city’s inhabitants and visitors is a matter of
concern to the residents, visitors, and businesses of the city.
B. The city has a compelling governmental interest in eliminating discrimination within the
city and assuring its citizens equal access to publicly available goods and services. This
interest includes providing its citizens a community where all persons, regardless of
actual or perceived race, color, national origin, ancestry, religion, creed, sex, age, martial
or familial status, physical or mental disability, sexual orientation, or gender identity or
expression have a fair and equal opportunity to participate in the business and
professional life of the city, and may be unfettered in availing themselves of opportunities
for employment, housing, and public accommodations.
C. Archaic and overbroad assumptions about the relative needs and capacities of individuals
based on sexual orientation or gender identity or expression force those individuals to
labor under stereotypical notions that often bear no relationship to their actual abilities. It
thereby both deprives persons of their individual dignity and denies society the benefits
of wide participation in political, economic, and cultural life.
D. Although state and federal laws have been enacted to eliminate discrimination in
employment, housing, and public accommodations on the basis of race, creed, religion,
color, sex, physical or mental disability, age and national origin, it is evident that lesbian,
gay, bisexual, and transgender individuals within the city have not attained equal
opportunity in housing, public accommodations, and employment. A barrier to the
advancement of lesbian, gay, bisexual, and transgender individuals in their personal and
professional lives within the city is the potential discriminatory practices of employers
and providers of public accommodations and housing on the basis of actual or perceived
sexual orientation and gender identity or expression. While the vast majority of
employers, housing providers, and places of public accommodations within the city
certainly do not discriminate on the basis of actual or perceived sexual orientation and
gender identity or expression, evidence of discriminatory practices exists within the city
making it difficult for some lesbian, gay, bisexual, or transgender individuals to find
satisfactory housing, obtain employment, and enjoy public accommodations free from
discriminatory practices.
E. Discrimination on the basis of actual or perceived sexual orientation and gender identity
or expression impacts many citizens of the city and has an especially harmful impact to
young residents and visitors to the city who may be lesbian, gay, bisexual, or transgender,
because it may force them to move from the city, not choose to attend university in the
213
Ordinance No. 1890, Prohibiting Unlawful Discrimination
Page 4 of 11
city, may impact their participation in the democratic process, and may impact their
ability to fully and freely identify themselves as they seek employment, housing and the
services and products provided by public accommodations.
F. Discrimination in employment has and will prevent the gainful employment of citizens of
the city addressed by this article and may create breaches of the peace, impose added
burdens upon the public for relief and welfare, and cause citizens, including youth, to
seek employment elsewhere.
G. Discrimination in housing makes it difficult for persons addressed in this article to find
housing in close proximity to urban services, educational facilities, in price ranges that
are within their earning ability, and may cause citizens to seek housing outside of the
city.
H. Discrimination in places of public accommodation is economically harmful to a
prosperous community and is otherwise detrimental to the welfare and economic growth
of the city and may cause citizens to seek public accommodations outside of the city.
I. The recognition of religious liberty and the rights of freedom of association and
expression is necessary to balance the civil rights of all residents of the city; as such,
provisions within this article related to fraternal, charitable, and religious organizations
are intended to ensure a balanced approach to protecting civil rights of all citizens of the
city so that the protections afforded by this article do not unreasonably impede upon a
fraternal, charitable, or religious organization’s ability to engage in activities protected by
law or to disseminate its preferred views.
J. Creation of a private cause of action in the municipal court is necessary to effectuate the
purpose of this article because a private cause of action will have a greater likelihood of
ensuring compliance with this article than enforcement by the city due to the lack of
available city resources. In addition, a private cause of action creates a viable mechanism
for deterring discrimination throughout the city, empowers an individual most affected by
a violation of this article to decide for themselves whether to seek relief rather than to
rely on the authority of city officials, and promotes the dignity of an individual by
assuring that the harmed individual receives the relief they desire for the injuries suffered.
24.10.020. Policy, Purpose and Intent.
A. It is declared to be the policy of the City, in the exercise of its police powers pursuant to
its self governing authority for the protection of the public health, safety, and general
welfare, and for the maintenance of peace and good government, to assure equal
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Ordinance No. 1890, Prohibiting Unlawful Discrimination
Page 5 of 11
opportunity to all persons, free from restrictions and discrimination because of his or her
actual or perceived race, color, national origin, ancestry, religion, creed, sex, age, martial
or familial status, physical or mental disability, sexual orientation, or gender identity or
expression.
B. The city commission declares that, in addition to the right to be free from discrimination
on the basis of race, color, national origin, ancestry, religion, creed, sex, age, martial or
familial status, physical or mental disability, the right to be free from discrimination on
the basis of actual or perceived sexual orientation or gender identity or expression is
recognized as and hereby declared to be a civil right. Adding such discrimination
prohibitions on the basis of actual or perceived sexual orientation or gender identity or
expression to the city’s laws is 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.
C. The provisions of this article shall be liberally construed for accomplishment of its
policies and purposes; provided that, however, nothing in this article 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, freedom of
association, and exercise of religion or to infringe upon or alter the authority vested by
law in the Montana Human Rights Commission, the federal Equal Employment
Opportunity Commission, or any other federal or state agency having jurisdiction over
discriminatory practices.
D. Pursuant to subsection §7-1-111(3), MCA, the provisions of the article do not apply to or
affect the public school system.
24.10.030. Definitions.
As used in this article, unless the context requires otherwise, the following definitions apply:
A. “Aggrieved party” means a person who can demonstrate a specific personal and legal
interest, as distinguished from a general interest, and who has been or is likely to be
specially and injuriously affected by a violation of this article.
B. “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 sexual orientation, gender identity or expression,
or association with a person or group of people so identified, or on the belief that a person
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has a particular sexual orientation or gender identity or expression, even if that belief is
incorrect.
C. “Employee” means an individual employed by an employer.
D. “Employer” means an employer of one or more persons or an agent of the employer but
excludes a fraternal or religious association, religious school, or religious corporation if
the association, school, or corporation is neither organized for private profit nor has as its
primary purpose the provision of accommodations or services that are available on a non-
membership basis.
E. "Employment agency" means a person undertaking to procure employees or opportunities
to work.
F. “Gender identity or expression” means a gender-related identity expression, or behavior,
regardless of the individual’s sex at birth.
G. “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.
H. “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.
I. "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.
J.
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,
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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 or a private educational institution with a curriculum based in whole
or in part upon religious faith, except to the extent it maintains a place described
in subsection (a), unless the service, goods or facilities are being provided for a
purpose which is primarily religious in nature.
d. 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.
K. “Sexual orientation” means heterosexuality, bisexuality, or homosexuality.
24.10.040. 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 employment opportunities or that would otherwise adversely
affect an individual’s status as an applicant or prospective employee, for a discriminatory
reason.
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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.
24.10.050. 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.
24.10.060. 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.
24.10.070. Retaliation prohibited.
A person shall not coerce, threaten, discharge, expel, blacklist, or otherwise retaliate against
another person for opposing any practices prohibited by this article, making a complaint, or
assisting in an investigation or proceeding regarding an alleged violation of this article; nor shall
any person require, request to conspire with, assist, or coerce another person to retaliate against a
person for making a complaint or assisting in an investigation or proceeding under this article.
24.10.080. Violation/Civil Remedy.
A. Any unlawful discrimination 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.
B. Violations of sections 24.10.040 through 24.10.070 unless otherwise subject to Montana
State law, are to be civil municipal ordinance violations within the exclusive jurisdiction
of the Bozeman municipal court. The Montana Rules of Civil Procedure shall apply,
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Ordinance No. 1890, Prohibiting Unlawful Discrimination
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except and unless the municipal court establishes alternative rules of civil procedure for
matters within the exclusive jurisdiction of the municipal court.
C. An aggrieved party or its authorized representative claiming a violation of this article
may seek civil remedies, injunctive relief, or other equitable relief against a person
alleged to have committed discrimination by petitioning the bozeman municipal court.
The municipal court is hereby authorized to determine appropriate remedies including but
not limited to injunctive relief. Any aggrieved party claiming a violation of this article
shall seek such relief within:
1. 180 days after the alleged unlawful discriminatory practice occurred or was
discovered;
2. If the aggrieved party has initiated efforts to resolve the dispute addressed in the
petition by filing a grievance in accordance with any grievance procedure
established by a collective bargaining agreement, contract, or written rule or
policy, the petition may be filed within 180 days after the conclusion of the
grievance procedure if the grievance procedure concludes within 120 days after
the alleged unlawful discriminatory practice occurred or was discovered; or
3. If the grievance procedure does not conclude within 120 days, the petition must
be filed within 300 days after the alleged unlawful discriminatory practice
occurred or was discovered.
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 article.
E. The prevailing party in a proceeding pursuant to this article may bring an action in the
municipal court for attorney fees and costs and the municipal court may, in its discretion,
allow the prevailing party reasonable attorney fees and costs.
Section 3
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances
of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full
force and effect.
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Section 4
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full
force and effect.
Section 5
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 6
Codification.
This Ordinance shall be codified as indicated in Section 1 and 2.
Section 7
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
#### End of Ordinance except for signatures ####
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Ordinance No. 1890, Prohibiting Unlawful Discrimination
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PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the _____ day of ________________,
201_.
____________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
____________________________________
STACY ULMEN, CMC
City Clerk
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of
____________________, 201_. The effective date of this ordinance is __________, __, 201_.
_________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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07:42:21 PM Motion that having considered public testimony, I move to provisionally adopt Ordinance
1890.
Commissioner - I-Ho Pomeroy: Motion
Commissioner - Cynthia Andrus: 2nd
07:43:45 PM Commission Discussion
The Commission discussed each of their positions on the Ordinance.
07:54:22 PM Deputy Mayor Taylor hands Gavel to Mayor Pro-Tem Mehl
Deputy Mayor Taylor handed to gavel to Cr. Mehl so that he can make amendments to the Motion.
07:54:25 PM Amendment to the Main Motion to section 24.10.040 D. by changing the clause that
reads; “excludes a fraternal, charitable, or religious association or corporation if the association or
corporation…” to the following: “excludes a fraternal or religious association, religious school or
religious corporation, if the association, school or corporation…”
Deputy Mayor - Carson Taylor: Motion
Commissioner - Cynthia Andrus: 2nd
07:55:20 PM Commission discussion on the Amendment
The Commission discussed the amount of charitable organizations in the City.
08:00:14 PM Friendly amendment
Cr. Andrus would like the word “neither” moved from “…or corporation is organized neither…” to “…or
corporation is neither organized…” Deputy Mayor Taylor agreed to the friendly amendment.
08:01:31 PM Vote on the Amendment to the Main Motion to section 24.10.040 D. by changing the
clause that reads; “excludes a fraternal, charitable, or religious association or corporation if the
association or corporation…” to the following: “excludes a fraternal or religious association, religious
school or religious corporation, if the association, school or corporation…” and the friendly
amendment of moving the word “neither” from “…or corporation is organized neither…” to “…or
corporation is neither organized…”
Deputy Mayor - Carson Taylor: Motion
Commissioner - Cynthia Andrus: 2nd
Mayor - Jeff Krauss: Absent
Deputy Mayor - Carson Taylor: Approve
Mayor Pro-tem - Chris Mehl: Approve
Commissioner - Cynthia Andrus: Approve
Commissioner - I-Ho Pomeroy: Approve
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08:01:48 PM Amendment to the Main Motion to amend section 24.10.040 C and D to read as one
section C. to read as follows: “Public Accommodation” does not include a church or other religious
association or corporation or a private educational institution with a curriculum based in whole or in
part upon religious faith, except to the extent that it maintains a place described in subsection (a),
unless the service, goods or facilities are being provided for a purpose which is primarily religious in
nature.
08:03:14 PM Discussion on the Amendment
The Commission discussed the definition and gave examples of accommodations that would be exempt.
08:08:45 PM Vote on the Amendment to the Main Motion to amend section 24.10.040 C and D to read
as one section C. to read as follows: “Public Accommodation” does not include a church or other
religious association or corporation or a private educational institution with a curriculum based in
whole or in part upon religious faith, except to the extent that it maintains a place described in
subsection (a), unless the service, goods or facilities are being provided for a purpose which is
primarily religious in nature.
Deputy Mayor - Carson Taylor: Motion
Commissioner - I-Ho Pomeroy: 2nd
Mayor - Jeff Krauss: Absent
Deputy Mayor - Carson Taylor: Approve
Mayor Pro-tem - Chris Mehl: Approve
Commissioner - Cynthia Andrus: Approve
Commissioner - I-Ho Pomeroy: Approve
08:09:03 PM Amendment to the Main Motion to change section 24.10.040 Section J, subsection b.
Change the number from “100 members” to “50 members”. Motion died due to a lack of a second.
08:09:47 PM Deputy Mayor Taylor
Deputy Mayor Taylor spoke regarding his position on this amendment stating that the number is set on
community size.
08:11:11 PM Gavel turned back over to Deputy Mayor Taylor
08:11:18 PM Commission Discussion on the Main Motion as amended.
The Commission discussed accommodations. Each Commissioner discussed the reasoning behind their
upcoming votes on this item
08:56:28 PM Vote on the Motion that having considered public testimony, I move to provisionally
adopt Ordinance 1890 as amended.
Commissioner - I-Ho Pomeroy: Motion
Commissioner - Cynthia Andrus: 2nd
Mayor - Jeff Krauss: Absent
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Deputy Mayor - Carson Taylor: Approve
Commissioner - Chris Mehl: Approve
Commissioner - Cynthia Andrus: Approve
Commissioner - I-Ho Pomeroy: Approve
224