HomeMy WebLinkAbout03/03/1992, 1 - SEXUAL ORIENTATION NON-DISCRIMINATION ORDINANCE II'lYnll�llll�lllll II� MEETING DATE:
ISI � l� clvJ of san LaIs osispo March 3 1992
COUNCIL AGENDA REPORT REM NUMBER:
FROM: ANN McPIKE, DIRECTOR OF PERSONNEL
SUBJECT: SEXUAL ORIENTATION NON-DISCRM NATION ORDINANCE
CAO RECOMMMIIDATIONS
(1) Consider a recommendation from the Human Relations Commission (HRC) concerning
a sexual orientation non-discrimination ordinance along with various alternatives to the
HRC recommendation, and;
(2) Take action or provide staff with follow-up direction as appropriate.
DISCUSSION
BACKGROUND:
In October 1991, Governor Pete Wilson vetoed Assembly Bill 101 which would have amended
the Fair Employment and Housing Act to add sexual orientation as a prohibited basis of
discrimination in employment. In response to the veto, gay and lesbian organizations
throughout the state have approached municipalities requesting that cities adopt local ordinances
that prohibit discrimination on the basis of sexual orientation in employment or housing or both.
Several cities have responded by enacting such ordinances that provide victims of sexual
orientation discrimination with a cause of action in civil court. These local ordinances go
beyond current state and federal regulations.
The Human Relations Commission (HRC) was approached on November 6, 1991 by members
of the Gay and Lesbian Alliance (GALA) to consider recommending to the City Council the
adoption of a sexual orientation non-discrimination ordinance. At a November 19, 1991 HRC
special meeting, convened specifically to consider this issue, staff was directed to research what
other cities have done to respond to this issue and provide recommendations to the HRC for
their consideration at their January 8, 1992 meeting. At their regular meeting on December
49 1991, the HRC established a sub-committee to augment efforts to advise the community and
solicit public input, both pro and con.
Prior to the January 8 meeting, HRC notified in writing all churches that appear in the local
telephone directory and the San Luis Obispo Ministerial Association, and followed up with
phone calls. Display ads were placed in the Telegram Tribune on January 2 and 6, 1992 and
notices were mailed to the Chamber of Commerce, BIA, the Board of Realtors and the local
school board. These, too, were followed up with phone calls by staff.
Staff reported to the HRC the various approaches that other cities have taken to address those
concerns expressed by GALA and other homosexual advocacy groups. Each approach was
framed as an alternative including pros and cons so that the HRC would fully understand the
ramifications of whatever recommendation they would choose to forward to the City Council.
At the January 8 meeting, no public comments were made in opposition to the proposed
ordinance. Approximately one hundred (100) people were in attendance.
Based on the information presented and public testimony from those in support of the ordinance,
the HRC approved a motion (5-2 vate) recommending to the City Council the adoption of an
ordinance similar to the Laguna Beach ordinance that prohibits discrimination on the basis of
sexual orientation in employment, kousing, business opportunities and education.
j���IU city of San _.SIS OBISp0
CODICIL AGENDA DEPORT
The specifics of the ordinance are discussed more fully below as well as the other alternatives
that were considered by the HRC. The City Council is being asked to review the HRC
recommendation and the alternatives as well and to direct staff to follow up as appropriate.
HRC RECOAE%H NIDATION AND ALTERNATIVES:
HRC RECOMMENDATION: Recommend the adoption of an ordinance that prohibits
discrimination in employment,housing and real estate transactions,business establishments
and practices, City facilities and services and educational institutions.
This recommendation would serve to provide the same protection to individuals in the City of
San Luis Obispo from sexual orientation discrimination that currently exists in state and federal
laws that prohibit discrimination based on race, color, religion, national origin, age, sex, marital
status or physical disability. Sexual orientation would be defined in the ordinance to mean
actual or supposed heterosexuality, homosexuality or bisexuality.
The ordinance supported by the HRC would prohibit discrimination on the basis of sexual
orientation in employment as well as housing, etc., and goes beyond AB101 which limited its
prohibitions to discrimination in employment only. The ordinance would expressly allow civil
actions to be brought by any person whose rights were allegedly violated under the ordinance.
Injunctions against violations of the ordinance could be brought by any aggrieved person, the
City Attorney, or representative of the protected class. Actions under this ordinance must be
filed within one year of the alleged discriminatory act. Bona fide religious organizations are
exempt from this ordinance. An exemption is also provided in the non-discrimination in
housing provision for owner-occupied and small dwelling units. The ordinance would not apply
to the rental or leasing of any housing unit in which the owner or lessor or any member of
his/her family occupies one of the living units.
The ordinance proposed by HRC would convey the full range of liability awards to the persons
whose rights are violated, actual general and special damages, costs and attorneys' fees and in
.some case punitive damages.
Staff Analyte:
The arguments supporting the adoption of an ordinance prohibiting discrimination on the basis
of sexual orientation are similar to those that support other civil rights. Supporters believe that
individuals should not be denied housing or business opportunities because of an arbitrary
standard, or as with sexual orientation, private personal choices. The issue of personal choice
is not unlike the personal choice individuals make relative to religious preference or marital
status, choices already explicitly protected under state and federal law. As for employment,
proponents of the ordinance argue that decisions or judgements should be based upon merit or
one's ability to perform the tasks of the job rather than a non-work related criteria such as
sexual orientation, or as is law currently, the color of one's skin, physical disability, age or sex.
Supporters of the ordinance argue that existing law does not protect the gay and lesbian
community from discrimination. Several individuals at the HRC meetings testified that they had
been victims of such discrimination and had no recourse through local, state or federal law.
Opponents to the ordinance contend that there are sufficient laws on the books to protect the
rights of homosexuals. What these laws are is not clear. The Unruh Act, California's civil
2
►H,►�u���Illlllilll° 9�III city or san ,ais osispo
NffinZa COUNCIL AGENDA REPORT
rights act, which has been interpreted to prohibit discrimination because of political beliefs
(which includes gay activism as well as some housing and business practices) probably does not
protect in other area against sexual orientation discrimination. Neither state nor federal civil
rights laws include sexual orientation as a protected class, so a defense against discrimination
based on those statutes would be dependent upon the interpretation of the courts. That
interpretation can vary from court to court as demonstrated by the recent decision Delancy v
Superior Fast Freight, C759189, which invalidated the City of Los Angeles' sexual orientation
discrimination ordinance on the basis of state preemption. In summary, there is not legal
agreement that current law is adequate to provide the kinds of protections other minority groups
have.
Opponents of this ordinance argue that such local legislation could burden the business
community with unnecessary lawsuits and the attendant legal costs of defending against such
claims.
Because this alternative represents a comprehensive regulation affecting many employers,
businesses, and educational institutions, and because it gives a legal status to lifestyles that are
non-traditional and unacceptable to some segments of society, such a measure has engendered
controversy and tends to polarize the community at opposite sides of the issue. Although the
ordinance exempts religious institutions, many opponents to the ordinance will be dissatisfied
with the ordinance philosophically. Some communities that have adopted, and in some cases
repealed, such ordinances find the controversy very divisive.
Other Cities' Experiences:
The cities of Concord and Irvine are examples of.cities that enacted human rights ordinances
that included sexual orientation as one of the protected classes against discrimination. After
passage of the ordinances, citizen groups sponsored initiatives that placed the issue on the
ballot. In both cities, ballot measures that supported the removal of the words "sexual
orientation" from their respective human rights ordinances were successful. The Irvine City
Council originally enacted a human rights ordinance in 1988, modeled after a similar ordinance
in Washington D.C. The "Irvine Values Coalition" sponsored the citizens' initiative that
overturned the ordinance by a small majority. According to the Irvine City Clerk, the Council
sentiment at the time of enacting the ordinance was that "it would be a good thing as
preventative to discrimination." The ordinance had come out of a.recommendation from a
council advisory committee that was charged with studying the issue of discrimination in Irvine.
Although the committee reported little discrimination of any kind, they recommended an
ordinance as preventative. The City of Irvine no longer includes sexual orientation as a
protected class. There was no litigation associated with the ballot measure.
Concord's experience paralleled that of Irvine. Members of the "Irvine Values Coalition"
worked with the citizens' group in Concord, "Concord United for Fair Law", to sponsor a
similar initiative. However, the issue in Concord is currently being settled by the courts, as
opponents to the ballot measure, "Measure M", sued the City immediately after the election.
The City of Davis, commonly compared to San Luis Obispo with its college community and
quality of life image, faced this issue in 1986. The City Council decided to put the issue to a
vote of the people and sponsored a referendum supporting a human rights ordinance that
3
������i�N►I�►IIIIIIIIII°�'�'��IUIII MY Of SAn LaI s OBI SPO
= COUNCIL AGENDA REPORT
included sexual orientation. The referendum passed.. Although, in-the words of a Davis staff
member, the controversy was "fairly bitter at the time," there have been no resulting claims or
lawsuits. The City of Laguna Beach has had an ordinance for some time that prohibits
discrimination based on sexual orientation as well as an ordinance that prohibits discrimination
based on HIV antibody status. According to Robert Gentry, Mayor of Laguna Beach, "there
have been no lawsuits nor litigation associated with the ordinances. Staff time has been zero.
The people in our community have honored the ordinance and have set a community standard."
Gentry was not aware of any complaints from private business.
The City of Riverside has an ordinance similar to Laguna Beach's which prohibits
discrimination based on the medical condition of HIV or AIDS. When the City Council
referred to an advisory body the consideration of a sexual orientation ordinance, a citizens'
group collected enough signatures for a ballot initiative to repeal the HIV/AIDS ordinance in
addition to barring the Council from adopting a sexual orientation ordinance in the future. The
Riverside citizens' group included members of the Traditional Values Coalition that lent support
to the successful initiative efforts in Irvine and Concord.- They spearheaded a similar campaign
in Denver in early 1991 that lost. The Traditional Values Coalition is based in Orange County
and active in other political issues such as anti-abortion.
Riverside City Council, based on their City Attorney's advice, refused to put the initiative On
the ballot. The attorney's argument was that the initiative besides repealing the HIV ordinance
would ban future City Councils in Riverside from taking action on a sexual orientation non-
discrimination ordinance. The Appeals Court upheld the Council's actions and the sponsors of
the initiative are appealing that decision. It is anticipated that this issue may be eventually
heard by the U. S. Supreme Court.
Currently, there are 85 cities and 20 counties nationwide that have gay rights ordinances. The
states of Hawaii, Wisconsin, New Jersey, Massachusetts and Connecticut as well as Washington
D.C. also have gays rights legislation. In California, 18 cities and/or counties have such
legislation which covers 25% of the state's population. Attachment A is an analysis of local
sexual orientation non-discrimination ordinances from the American Civil Liberties Union of
Southern California that the ACLU undertook following a public hearing before the California
State Assembly Ways and Means Subcommittee when they were considering AB101. Since that
analysis in March of 1991, four more cities have enacted such legislation.
Staff Recommendation:
Should the Council adopt the HRC recommendation, staff would recommend the modification
of the proposed HRC ordinance to mitigate the concern that the business community would be
burdened with frivolous lawsuits. This can be accomplished in part by the deletion of the
provision awarding punitive damages. Staff also recommends that the commitment of City
resources toward the enforcement of the ordinance should be minimized by deleting the
reference to the City Attorney in the section dealing with who may bring an action for
injunctive relief. These modifications are reflected in Attachment B, the sample ordinance.
ALTERNATIVE #1: Direct staff to draft an ordinance that prohibits sexual orientation
discrimination in employment by employers in the City.
This alternative provides the City Council with an option that parallels the intent of AB101, the
4
������►�uimi►Iliflipnq�llll City OF San -.AIS OBISPO
COUNCIL AGENDA REPORT
bill that would have banned job discrimination against homosexuals. AB101 was originally
drafted to include prohibitions against discrimination in housing as well. After it went through
the legislative committee process, it was amended to cover employment only. This was a
compromise effort that the Governor initially supported but eventually vetoed. The compromise
was reached in an effort to make the legislation less onerous to the business community.
The ordinance presented in Attachment C is similar to the Long Beach ordinance and is silent
on prohibitions in housing and real estate transactions, business establishments and practices,
City facilities and services and educational institutions. Simply stated this ordinance would
prohibit any business establishment within the City from discriminating against any person by
failing or refusing to hire or by disciplining or discharging any person or in any manner
discriminating against any person with respect to compensation, terms, conditions or privileges
of employment because of sexual orientation. The ordinance would exempt organizations that
employ less than five employees, federal, state, and county employers and religious
associations/corporations.
The ACLU analysis of local ordinances that prohibit discrimination in employment is fairly
complete. As stated in the attachment, many cities have adopted such ordinances including
Davis, Berkeley, Cathedral City, Los Angeles, Sacramento, San Diego, Santa Monica, San
Francisco City and County, West Hollywood, and Long Beach. In the case of Santa Barbara,
discrimination in employment based on sexual orientation is limited to those who contract with
the City.
Staff Analysis:
The pros and cons of this alternative are much the same as those presented in the analysis of
the HRC recommendation. The ordinance is less comprehensive so that supporters of the HRC
recommendation may view this ordinance as a diluted version that leaves homosexuals
unprotected in housing and the other areas where they maintain discrimination is occurring
currently. Supporters of this alternative will argue that impacts to local employers will not be
significant in that the major employers in the community, Cal Poly, Cal Trans, PG&E and
EOC, already prohibit sexual orientation discrimination in their employment practices.
Like the HRC recommendation, the exposure of businesses to additional lawsuits and the
attendant costs are disadvantageous. San Luis Obispo employers that engage in business
elsewhere will be faced with the burden of modifying their employment practices to comply
with our local ordinance that may be inconsistent with how they operate elsewhere. This lack
of uniformity could lead to confusion and added costs.
ALTERNATIVE #2: Adopt a resolution that affirms a City policy of non-discrimination
against persons based on sexual orientation;
The City Council can amend its Affirmative Action Policy by resolution (Attachment D) to
include the specific reference to sexual orientation. The policy would provide a cause of action
via the complaint procedure in the Affirmative Action Plan to someone who alleges sexual
orientation discrimination in a City of San Luis Obispo employment action. The City's
Affirmative Action Policy adopted in June of 1991 states:
"The City of San Luis Obispo is committed to the concept of Equal Employment
Opportunity as a basic principle that all persons shall be given equal access and
5
MY Of San ,.aIS OBISPO
COUNCIL AGENDA REPORT
consideration to positions in the public service limited only by their ability and
qualifications to do the job . . . without regard to race, color,rehgion, national origin,
age, sex marital status or physical disability."
This alternative would require the City to add the words "sexual orientation" to the paragraph
quoted above.
The City of Santa Cruz along with a number of other cities has included in their affirmative
action plan sexual orientation as a protected class. According to their Personnel Director, it
has been a "non-issue" over the many years-that it has been included in their plan. This is not
to be confused with the current controversyrin Santa Cruz.
Recently, Santa Cruz gay and lesbian community groups approached their City Council in the
wake of the AB101 veto and a council member suggested including physical,appearance as a
protected class. Much controversy-was generated by this action. Although representatives of
the business community who testified at ,the public hearing were not supportive of the
ordinance, most objections were focussed on the physical appearance component of the
ordinance rather than sexual orientation. The Seaside Company, one of Santa Cruz' major
employers, was one such organization. Currently, a subcommittee of the Santa Cruz City
Council is drafting an "expanded" human rights ordinance for consideration.by the Council in
April.
Staff Analysis:
This alternative places no administrative or procedural burden upon the City other than our own
requirement to meet and consult with the employee associations on employment policy changes.
The City of San Luis Obispo does not discriminate in,its employment practices on the•basis of
sexual orientation even though such prohibition is not specified in our Affirmative Action Policy
which specifically names the other protected classes. .Amending our policy would be consistent
with other employers' policies locally. As stated above, Cal Poly and Cal Trans, major public
employers in the community, include sexual orientation as protectedrelasses in their affirmative
action plans. This alternative would require the City to more clearlyarticulate the City's equal
employment opportunity principles without stepping into the privateeector arena as required in
the HRC Recommendation and Alternative #1. The City's action, however, could serve as an
"example" to the private sector.
ALTERNATIVE #3: Take no formal action but await state and/or federal legislation
prohibiting discrimination on the basis of sexual orientation.:
nT
By maintaining the status quo, the City can look toward the state and federal government to
eventually adopt legislation in this area. Although many jurisdictions in California have no
sexual orientation nondiscrimination policies, ordinances have been enacted in some form in the
most populous communities within the State, including Los Angeles, San Francisco, San Diego
and Sacramento. Both the substantive and the procedural provisions of the ordinances that exist
throughout the State differ considerably from one another. Not only does the scope of such
regulations depend upon the jurisdiction involved, but so do the basic procedural rules such as
the applicable statute of limitations, the existence of administrative remedies, the availability of
injunctive relief, and the measure of monetary recovery allowed. Such lack of uniformity in
what is required of employers and those engaging in real estate transactions, and in what
employees and those renting, buying, insuring or borrowing against property can expect, leads
6
111I city Of San L. I S OBI SPO
WMZ COUNCIL AGENDA REPORT
to considerable confusion and added costs for those who do business in or move between
various parts of the state. A major advantage of state-wide legislation prohibiting
discrimination on the basis of sexual orientation in employment and housing in California would
be the elimination of the multiple discrepancies in this area of the law that currently exist
among the communities of our state.
Wisconsin, Massachusetts, New Jersey, Connecticut, Washington, D.C. and Hawaii have
enacted forms of sexual orientation anti-discrimination legislation and it is expected that
California will be considering similar legislation as will many other states in the future.
Assembly Member Terry Friedman is currently working on another bill similar to AB101
which he sponsored in 1991. The City Council may want to direct the Mayor to send a letter
to the Governor reaffirming San Luis Obispo's opposition to discrimination of any kind as
evidenced by the City's practice of limiting employment decisions to an individual's ability of
an employee to do the job. The City does not consider non-work related criteria in the
selection, promotion or in other terms and conditions of employment.
SUMMARY:
The City Council has been presented with a recommendation from the HRC as well as a range
of alternatives. The pros and cons of each alternative have been discussed. The Council is
asked to receive the recommendation from the HRC, consider the alternatives presented and
direct staff to either.
1. Approve the recommendation of the HRC to consider the adoption of a comprehensive
ordinance prohibiting discrimination on the basis of sexual orientation in employment,
housing, business establishments and practices, City facilities and services and
educational institutions, and direct staff to return to the next regular Council meeting
with a proposed ordinance for first reading and a public hearing,
or
2. Direct staff to return to the next regular Council meeting with a proposed ordinance
that bans sexual orientation discrimination in employment only,
or
3. Adopt a resolution affirming a City policy of non-discrimination against persons based
on sexual orientation by amending the City's Affirmative Action Policy to include sexual
orientation as a protected class,
or
4. Make no formal recommendations at this time but await state and/or federal legislation
prohibiting discrimination on the basis of sexual orientation and reaffirm the City's
opposition to discrimination of any kind.
7
�'�►H����Hi�►IIII�IIPniglUlll city of san tAS OBlfipo
COUNCIL AGENDA REPORT
FISCAL IldPACT
There is no significant fiscal impact to the City for any of the alternatives presented above
particularly if the staff recommendation to delete the City Attorney from initiating injunctive
relief is followed. The implications on the local economy-ann less clear. However, based
upon discussions with officials from the cities of Davis, Laguna Beach and Santa Monica, there
does not appear to have been an impact on their local economies or on their budgets.
ATTACHMENTS
A. ACLU Foundation Memorandum, dated March 6, 1991
B. Draft Ordinance: "Discrimination on the Basis of Sexual Orientation"
C. Draft Ordinance: "Employment Discrimination on the Basis of Sexual Orientation"
D. Resolution: "Amending the City of San Luis Obispo's Affirmative Action Plan to
include Sexual Orientation as a Protected Class"
8
1 _ R
Y
t
ATTACHMENT A
IJYR Oanur
AUM V_
*M
bwm uar ACLU FOUNDMION
ahibem
PeOidaw OF SOUTFIfRN CALIFORNIA 673 Saab gum ftm
- Norman lac Ln Anpim C hfcr R 9M
vlee PreawMa (217)187-1170
Alan
bm Bee n FAX(217)1963121
Bob L°°daa^ T0: The Honorable Terry B. Friedman
Auan
Fndexk M.NrAclu .
Ew Saff FROM: Jon W. Davidson -
Senior Staff Counsel
Swam. ACLU Foundation of Southern California
hma Colon
sw°LAwd'M.T ' DATE: March 6, 19 91 odv
Of couoad Q�
Sd�nkn RE: Local Sexual - Orientation Non-
A1inun
7ehn V.Tummy Discrimination Ordinances
sta rd or Dv n
Ruth Abraham
48.Adelman
Ltcr Adelman
Pxhard AYteri .. .
C.Riclu.d Alien
Marilyn&spun
B'�K°","�'' Introduction and Summary .
Robes Cohn -
Barban Cnd-y
Rkltard Dnvluaa
]am Ealy
Sandy Eb`e
Jaa S.Fuke As you requested at the November 15, 1990
S.
Fnink'n Interim Hearing on Sexual Orientation
Ram6c= Discrimination in Employment, Housing, and Other
kC;� Human Services, before the California Assembly Ways
Bcnh X)Jnch and Means Subcommittee No. 1 on Health and Human
tca�Kauhc
„rtL
B11CJ1R Services, I have reviewed the local ordinances
�hvuq Lc)ahn) - M.D.
hiTerR enacted in various communities throughout
MaraMapdaon
s'J, California that prohibit discrimination on the
S0:M"CW nzrh basis of sexual orientation in private employment
P r^n) a,kc# or housing, or both.
Rob.n Mnda
Vnpma 04ncv
Lounka ky I have been able to locate fourteen local
MaxPO"m
Max
)udt&/l+abndrneQA,ch California governments that have some form of
Muk Rnenbm sexual orientation non-discrimination ordinance or "
Wchard Raeneveq
Pat Rnh
Anhue AWn Serdelman
Man sekr
soder K-Shnnbaum
Raben Shvean
Dnnd stem
Tan.)r.
Fbreme Temkin
Eve ThRo
Jun Twe
Philip Coin
Paub 4'awem
)oAnm daduc
bvvm Wmklee
C�hKWu - 1 Many of the existing local laws discussed in
Rnt'RrYr;fe this memorandum also prohibit sexual orientation
Ezwuck eDlretoe discrimination in public accommodations, by
R.mbn,Rimat business establishments, by educational
`` , institutions, and in the provision of government
Aeamiate D"veemr facilities and services. As I understand it, you
Loda K.Num are at this time interested in local employment and
1`p'D`""FmdOkm� housing sexual orientation nondiscrimination laws.
aaarralCom.al This memorandum accordingly does not address the
Mark D.Rantbaum differences that exist among other areas where
d`"`° � local sexual orientation nondiscrimination laws
C . apply.
Fatcrm Ertcban
Rti.."lurade
Tants Rua:
Rabat S.Tana 10. 9
Dwa~of Derelepmmt A Tn Deduenbk CorPonamn Fronded by The Amni=CWd Llb t Union of Scudh r-t:e�
Sandra M-)me
W
1
ACLU FOUN DATION
OF SOUTHERN CALIFORNIA
policy statement at present.2 Three of these (the cities of
Cupertino, Mountain View, and San Jose) prohibit sexual orientation
discrimination only in public employment by those cities-; and are.
therefore not discussed in this memorandum. Of the eleven others,
I have discovered very significant differences among the varying
enactments. This memorandum discusses the ways in which these
eleven ordinances differ from one another.
This memorandum begins by discussing differences among the
substantive employment provisions of the ordinances. These
differences include differences in the employers regulated,
Z These ordinances and policy statements are:
City of Berkeley Municipal Code, Chapter 13.26, Sections
13 . 28. 010 - 13.28. 100 (adopted by Ord. 5106-NS,-(1978) ) ;
City of Cathedral City Municipal Code, Chapter 11.88 ,
Sections 11.88. 010 - 11. 88. 130 (adopted by -(5rd. 181 (1987) ) ;
City of Cupertino Affirmative Action Policy Statement
(adopted by Resolution No. 3833 (1975);
City of Davis Municipal Code,=Chapter 7A, Sections 7A-1 -
7A-18 (adopted by Ord. 1359 (1986) ) ;
City of Long Beach Municipal Code, Chapter 5. 09, Sections
5. 09 . 010 - 5. 00. 050 (adopted by Ord. C-6408 (1987) ) ;
City of Los Angeles Municipal Code, Chapter Iv, Article
12, Sections 49. 70 - 49. 80 (adopted by Ord. 152,458 (1979) ) ;
City of Mountain View, Amended Affirmative Action Program
for the City of Mountain View (adopted by Resolution Nos. 2060,
2069) ;
City of Sacramento Municipal Code, Chapter 14, Sections
14 . 100 - 14 . 112 (adopted by Ord. 86-042 (1986) ) ;
City of San Diego Municipal Code; Division 96, Sections
52 . 9601 - 52 . 9615 (adopted by Ord. 17453 N.S. (1990) ) ;
City and County of San Francisco Police Code, Article 33,
Sections 3301 - 3311 (adopted by Ord. 184-81 (1981) ) ;
City of San Jose Policy No. 0-16 (1981.) ;
City of Santa Barbara Municipal- Code, Chapters 9. 126 and
9. 130, Sections 9.126.010 - 9. 126.030 and 9.130. 010 - 9.130. 030
(adopted by Ords. 3500 and 3501 (1972) ) ;
City of Santa Monica Municipal Code, Chapter 91 Sections
4900 - 4910 (adopted by Ord. 1317CCS (1984) ) ; and
(1984) ] . City of West Hollywood Ordinance No. 7, Sections 1'- 15
Copies of these ordinances and policy statements are attached
to this memo.
The City of Laguna Beach enacted Municipal Code Chapter 1. 07,
Sections 1. 07. 010 - 1. 07. 110, by Ord. 1061 in 1984. This ordinance
was repealed, however, in 1990.
2
- - 10
t
ACLU FOUNDATION
OF SOUTHERN CALIFORNIA
exemptions to coverage, recognized defenses, specification of
prohibited practices, and the definition of sexual orientation.
This memorandum next addresses differences among substantive.
housing provisions of the ordinances. The chief difference among
housing provisions lies in the exemptions provided to coverage,
which vary considerably from one another. This memorandum finally
discusses ways in which the procedural and remedial provisions of
the ordinances differ from one another. Differences exist in the
applicable statute of limitations, the availability of
investigation and mediation by local human relations commissions,
the availability -of injunctive relief and criminal sanctions, the
measure of compensatory and statutory damages, and the
recoverability of attorneys' fees and punitive damages.
Nondiscrimination in 'Emplovment
At present, nine localities within California have fairly
comprehensive regulations prohibiting various forms of employment
discrimination on the basis of sexual orientation within their
jurisdiction: the City of Berkeley 13 the City of Cathedral City,
the City of Davis, the City of Los Angeles,6 the City of
Sacramento the City of San Diego,8 the City and County of San
Francisco,o the City of Santa Monica,10 and the City of West
Hollywood." The City of Long Beach in less detailed fashion
prohibits employment discrimination on the basis of sexual
3 City of Berkeley Municipal Code, Section 13 .28. 030.
City of Cathedral City Municipal Code, Section 11.88. 030.
s City of Davis Municipal Code Article 7A-4 - 7A-6.
6 City of Los Angeles Municipal Code Section 49.72.
7 City of Sacramento Municipal Code, Section 14 . 101.
8 City of San Diego Municipal Code, Section 52.9603 .
9 City and County of San Francisco Police Code, Section 3303 .
10 City of Santa Monica Municipal Code, Section 4902 .
11 City of West Hollywood Ordinance No. 7, Sections 3 - 4 .
3
I
1
ACLU FOUNDATION
OF SOUTHERN CALIFORNIA
orientation by any "business establishment" within that City.22
In more limited fashion, the City of Santa .Barbara prohibits only
sexual orientation employment discrimination by those who contract.
with that city.
The ordinances vary considerably -in terms of which employers
are covered by their employment non-discrimination provisions. As
noted above, the City of Santa Barbara only regulates businesses
that are city contractors. Sacramento's and San Francisco's
ordinances only cover employers with six •or more employees.14
Cathedral City, Davis, Long Beach, and San Diego regulate only
employers with five or more employees.25 West Hollywood's ordinance
12 City of Long Beach Municipal . Code, Section 5.09.020.
13 City of Santa Barbara Municipal Code, Section 9. 126. 020.
Restrictions upon sexual orientation discrimination by government
contractors or those receiving government funding also exist in
Berkeley (City of Berkeley Municipal Code, Section
13 . 28 . 060 (A) (3) ) ; Cathedral City (City of Cathedral City Municipal
Code, Section 11. 88. 060(C) ) ; Los Angeles (City of Los Angeles
Administrative Code, Division 10, Chapter 1, Article 1, Sections
10. 8 - 10. 14 (adopted by Ord. 132533 (1966) , amended by Ord. 147030
(1975) and Ord. 164516 (1989) (adding sexual orientation
prohibition to Sections 10.8. 1. , 10.8.2, 10.8.3, 10.8.4, and 10.13)
and City of Los Angeles Municipal Code, Section 49.75 (a) (3) ) ;
Sacramento (City of Sacramento Municipal Code, Section
14 . 104 (a) (3) ) ; San Diego (City of San Diego Municipal Code, Section
52 , 9606 (A) (3) ) ; Santa Monica (City of Santa Monica Municipal Code,
Section 4905 (a) (3) ) ; and West Hollywood (-City of West Hollywood
Municipal Ordinance No. 7, Sections 7 and 8) .
14 City of Sacramento Municipal Code, Section 14 . 01 (b) (2)
(excluding businesses which employ "five or fewer employees
including the owner and any management and supervisorial
employees") .; City and County of San Francisco Police Code, Section
3303 (c) (2) (same) .
Is City of Cathedral City Municipal Code, Section 11.88. 020 (C)
("any person regularly employing five or more persons") ; City of
Davis Municipal Code, Section 7A-4 (e) ("any person who employs five
or more employees, including any management or supervisory
employees, but excluding the owner or owners") ; City of Long Beach
Municipal Code, Section 5. 09. 020 (business establishment "which
employs a minimum of five employees") ; City of San Diego Municipal
Code, Section 52.9602 (3) ("any private person regularly employing
five or more persons") . In counting the requisite number of
4
ACLU FOUNDATION
OF SOUTHERN CALIFORNIA
covers "any person regularly employing one or more employees. ,16
The ordinances of the cities of Berkeley and Los Angeles contain
no language limiting the number of employees an employer must have.
to be covered by their prohibitions.
The ordinances also have differing exemptions from their
employment non-discrimination provisions. Some, but not all, of
the ordinances to some extent expressly exempt religious
organizations from their coverage.17 Cathedral City alone also
exempts any "corporation organized for charitable purposes which
holds an Internal Revenue Service determination of tax exempt
status under Internal Revenue Code Section 501 (c) (3) . "18 Some of
the ordinances specifically include at least some government
employers;19 some specifically exclude government bodies from
employees before coverage exists, the Cities of Davis and Long
Beach alone do not include "any person employed by his or her
parents, spouse or child, or any person employed under a special
license in a nonprofit sheltered workshop or rehabilitation
�- facility. " (City of Davis Municipal Code, Section 7A-4 (e) ; City
of Long Beach Municipal Code, Section 5.09. 010(B) . )
76 Cit of Holl
City West Hollywood municipal Ordinance No. 7, Section
2 (B) .
17 See City of Cathedral City Municipal Code, Section
11. 88 . 020 (0) (exempting "religious association[s] ") ; City of Davis
Municipal Code, Section 7A-12 (exempting any "bona fide religious
organization") ; City of Long Beach Municipal Code, Section
5. 09. 010 (A) (3) (exempting "Any religious association or corporation
not organized for private profit") ; City of. Los Angeles Municipal
Code, Section 49.80 (a) (exempting any. "bona fide religious
organization") ; City of San Diego Municipal Code, Section 52 . 9615
(exempting "religious organizations and their schools") ; City of
Santa Monica Municipal Code, Section 4910 (exempting "bona fide
religious organizations") . The ordinances of Berkeley, Sacramento,
San Francisco, and West Hollywood contain no such express
exemptions for religious organizations.
18 City of Cathedral City Municipal Code, Section
11.88. 020 (C) .
19 City of Cathedral City Municipal Code, Section 11. 88. 020 (C)
(" `Employer' includes the city of Cathedral City" itself) .
5
t - 13
ACLU FOU N- D
OF SOUTHERN CALIFORNIA
coverage;20 and most are silent on this point. Unlike the other
ordinances, the City of Santa Monica's ordinance excludes from
coverage "the employment of individuals to perform services in the
place of residence of the empl.oyer"21 and-the ordinance of the City
of Davis does not regulate "a natural person or persons
declin[ing] to employ another person for service within or on the
premises of the employer's personal�residence. „u
All of the ordinances provide an affirmative defense to
employers ' employment decisions based on a bona fide occupational
qualification. Some, but not all, also provide a defense that a
challenged employment practice is actually necessary to observe the
conditions of a bona fide seniority system23 or a bona fide employee
benefit system.24
The practices which the ordinances define as prohibited sexual
orientation employment discrimination are generally similar,
although the degree of specificity and wording of the prohibitions
`0 City of Davis Municipal Code, Section 7A-3 (f) (excepting J
any "public agency" from the definition of "person") ; City of Long
Beach Municipal Code, Section 5. 09. 010(A) (3) (b) (exempting from
coverage "The federal government or any agency thereof or the state
government or any agency or local subdivision thereof, including
but not limited to, counties, cities, districts, authorities, and
agencies") ; City of San Diego Municipal Code, Section 52 .9602 (3)
(" `Employer' shall not include any federal , state or local
agencies. ") .
`1 City of Santa Monica Municipal Code, Section 4902 (d) (2) .
22 City of Davis Municipal Code, Section 7A-5 (c) .
23 City of Berkeley Municipal Code, Section 13 .28. 030 (D) ; City
Of Davis Municipal Code, Section 7A-5 (b) ; City of Sacramento
Municipal , Code, Section 14. 101 (b) (2) ; City and County of San
Francisco Police Code, Section 3303 (c) (1) .
24 City of Berkeley Municipal Code, Section 13. 28. 030(D) ;. City
of Davis Municipal Code, Section 7A-5(b) ; City of Los Angeles
Municipal Code, Section 49.72 (d) ; City of Sacramento Municipal
Code, Section 14.101(b) (2) ; City of San Diego Municipal Code,
Section 52. 9603 (D) (1) ; City and County of San Francisco Police
Code, Section 3303 (c) (1) ; City of Santa Monica Municipal Code,
Section 4902 (d) (1) .
6
I � 1+�
ACLU FOUNDATION
OF SOUTHERN CALIFORNIA
vary considerably. Only two of the ordinances specifically
require posting of a notice that sexual orientation employment
discrimination is prohibited.26 In addition, Davis's ordinance,
unlike the others, apparently limits its coverage to "intentional"
sexual orientation employment discriminations
Besides employers, most of the ordinances also regulate the
employment-related practices of employment agencies, labor
organizations, and job training programs.28 Moreover, some, but not
all, of the ordinances specify that they regulate not only actual
s For example, the ordinancesenerall
g y prohibit
discrimination "on the basis of [an] individual 's sexual
orientation, " but several specifically add that if the employer's
conduct was based "in whole or in part" on an employee's sexual
orientation, such conduct violates the law. (See, e.g. , City of
Los Angeles Municipal Code, Section 49.72 (a) (1) . )
Most of the ordinances prohibit discrimination in failing or
refusing to hire, discharging or otherwise discriminating against
an employee with respect to compensation, terms, conditions or
privileges of employment. Long Beach additionally lists
discrimination in disciplining employees. (City of Long Beach
Municipal Code, Section 5. 09. 020(A) . ) Sacramento and San Francisco
identify discrimination in promotion as specifically prohibited.
(City of Sacramento Municipal Code, Section 14. 101 (a) (1) ; City and
County of San Francisco Police Code, Section 3303 (a) (1) . ) West
Hollywood specifies that harassment on the basis of sexual
orientation is a form of sexual orientation discrimination. (West
Hollywood Municipal Ordinance No. 71 Section 4 (J) . ) Some, but not
all , of the ordinances specifically prohibit discrimination in
employment advertising practices. (Compare, e.a. , City of Berkeley
Municipal Code, Section 13 .28. 030(A) (6) with City of Cathedral City
Municipal Code, Section 11. 88. 030. ) Four of the ordinances
specifically prohibit retaliation against any person seeking to
enforce the provisions of the ordinance. -(City of Davis Municipal
Code, Section 7A-11; City of Sacramento Municipal Code, Section
14 . 106; City of San Diego Municipal Code, Section 52. 9612 ; City of
west Hollywood Ordinance No. 7, Section 4 (H) . )
26 City of Berkeley Municipal Code, Section 13.28. 030 (E).(1) ;
City of Sacramento Municipal Code, Section 14. 101(c) (1) .
27 City of Davis Municipal Code, Section 7A-4 .
28 Long Beach's ordinance, however, appears not to cover
employment agencies and labor organizations. (See City of Long
Beach Municipal Code, Section 5. 09. 020. )
7
I- ►s
ACLU FOUNDATION
OF SOUTHERN CAUFORNiA
employers, but also "person acting as an agent of any employer,
directly or indirectly. " west Hollywood also prohibits any person
from aiding, abetting, inciting, compelling or coercing any of the
acts forbidden by its ordinance, or attempting to do so.30
Berkeley, San Francisco, and Santa Monica similarly impose liabilty
upon any person "who aids in the violation of any provisions" of
their ordinances,31 and Long Beach imposes liability upon any person
"who knowingly aids another in the violation" of its ordinance.32
Finally, the definition of 11eexual orientation" varies
considerably between the ordinances. Berkeley defines the phrase
as "actual or supposed sexual preference. 1133 San Diego defines it
as "actual or supposed sexual preference for any lawful sexual
activity. "34 Davis and Long Beach define it as "heterosexuality,
homosexuality or bisexuality" and Cathedral City and Sacramento
define it as "actual or supposed heterosexuality, homosexuality,
or bisexuality. 1135 Santa Monica's definition is even more
comprehensive, defining "sexual orientation" as "actual or supposed
homosexuality, heterosexuality, or bisexuality, by preference or
practice, including, but not limited to, an orientation that may
be imputed on the basis of mannerisms, physical characteristics or
29 See, e.
_cf. , City of Cathedral City Municipal Code, Section
11.88 . 020 (C) .
30 City of west Hollywood Municipal Ordinance No. 7 , Section
4 (I) .
31 City of Berkeley Municipal Code, Section 13 . 28. 080; City
and County of San Francisco Police Code, Section 3306; City of
Santa Monica Municipal Code, Section 4907.
32 City of Long Beach Municipal Code, Section 5.09. 040 (B) .
33 City of Berkeley Municipal Code, Section 13 . 28. 020.
34 City of San Diego Municipal Code, Section 52. 9602 (9) .
35 City of Davis Municipal Code, Section 7A-3 (h) ; City of Long
Beach Municipal Code, Section 5. 09. 010 (D) ; City of Cathedral City
Municipal Code, Section 11.88.020(H) ; City of Sacramento Municipal
Code, Section 14 . 100 (e) . Davis' ordinance adds that "The phrase
'sexual orientation' shall not include conduct which is unlawful
under city, state or federal law or regulation. " (City of Davis
Municipal Code, Section 7A-3 (h) . )
8
ACLU FouNDAnoN
OF SOUTHERN CALIFORNIA
manner of dress. "36 Los Angeles' definition takes an altogether
different approach. It defines "sexual orientation" as "an
individual having or manifesting an emotional or physical
attachment to another consenting adult person or persons, or having
or manifesting a preference for such attachment, or having or
projecting a self-image not associate with one's biological
maleness or one's biological femaleness. " , West Hollywood does not
have a limiting definition, but instead provides that " 'Sexual
orientation' includes but is not limited to manifesting an
emotional or physical attachment to another consenting person. "74
Finally, San Francisco's ordinance includes no definition of the
term "sexual orientation" at all.
Nondiscrimination in Housing- and Real Estate Transactions
The ordinances of nine of the communities discussed above also
prohibit discrimination in certain forms of real estate practices.39
As with the employment provisions, the wording and degree of
specificity of the provisions relating to prohibitions on housing
. and real estate sexual orientation discrimination are not
identical. While all generally prohibit interrupting, terminating
or failing or refusing to initiate or conduct any transaction in
real property, including but not limited to the rental thereof;
requiring different terms for such a transaction; including in the
terms or conditions of a transaction in real property any clause,
condition or restriction, or falsely representing that an interest
in real property is not available for transaction on the basis of
an individual 's sexual orientation; as well as sexual orientation
36 City of Santa Monica Municipal Code, Section 4901 (d) .
37 City of Los Angeles Municipal Code, Section 49.71 (4) .
2 (F) .38 Cit of West Hollywood ywood Municipal -Ordinance No. 7, Section
39 See City of Berkeley Municipal Code, Section 13 .28.040;
City of Cathedral City Municipal Code, Section 11.88.040; City of
Davis Municipal Code, Section 7A-8 ; City of Los Angeles Munidipal
Code, Section 49.73; City of Sacramento Municipal Code, Section
14 . 103 ; City of San Diego Municipal Code, Section 52.9604 ; City and
County of San Francisco Police Code, Section 3304 ; City of Santa
Monica Municipal Code, Section 4903; City of West Hollywood
Ordinance No. 7, Section 5. Long Beach's ordinance appears not to
apply to sexual orientation discrimination in housing or real
estate transactions.
9
ACLU FOUNDATIO q-
OF SOUTHERN CALIFORNIA
discrimination in lending of money, guaranteeing of loans,
accepting mortgages, and providing title or other insurance
relating to the ownership or use of real property; refusing or
restricting facilities, services or improvements for any tenant or
lessee on the basis of sexual orientation, and engaging in
discriminatory advertising relating to such transactions, the
detailing and structure of these prohibitions diverge somewhat from
one another in minor respects.40
The principal difference among the existing housing sexual
orientation nondiscrimination provisions lies in the exemptions to
their application. Five cities exempt from coverage the rental or
leasing of any housing unit - in which the owner,"or lessor of any
member of his or her family -occupies one of the living units and
either (a) it is necessary for the owner or lessor to use either
a bathroom or kitchen facility in common with the prospective
tenant or (b) the structure contains less than three dwelling
4j
units. Cathedral City excepts the rental or leasing of any
housing unit in a structure which contains less than two dwelling
units and is not part of a larger apartment or housing complex
owned by the same owner, as well as any housing unit in which it '
is necessary for the owner or lessor, or the mother, father, son,
daughter, brother, sister, grandfather, grandmother, grandson or
granddaughter of such owner or lessor, to use either a bathroom or
kitchen facility in common with the prospective tenant.42 Davis
exempts the rental or lease of any portion of any dwelling in which
the owner or lessor ar any member of his or her family occupies the
dwelling; the rental or lease of an occupant's personal residence
together with the occupant ' s personal furnishings for periods of
temporary absence of less than one year; and the rental or lease
of a separate dwelling unit or the primary dwelling unit in a
single-family home, where the lessor occupies either of the
40 For example, as with the employment p p yment provisions, some of the
ordinances prohibit real estate discrimination based "in whole or
in part" upon sexual orientation (see City of Los Angeles Municipal
Code, Section 49.73 (a) (1) .) , while others do not contain this
clarification.
41 City of Berkeley Municipal Code, Section 13.28.040(C) (1) ;
City of Los Angeles Municipal Code, Section 49.73 (c) (1) ; City of
San Diego Municipal Code, Section 52.9604 (C) (1) ; City and County
of San Francisco Police Code, Section 3304 (b) (1) ; City of Santa
Monica Municipal Code, Section 4903 (c) (1) .
a2 City of Cathedral City Municipal Code, Section
11.88.949 (D) .
10 Q
1
ACLU FOUNDATION
OF SOUniERN CALIFORNIA
dwelling units. Davis also specifies that its ordinance does not
prohibit the reservation or preference in rental or sale of a
dwelling to a person who is a senior citizen.°3 Finally, Sacramento
and West Hollywood except from coverage only dwellings in which the
owner or lessor or any of his or her family members occupies one
of the living units and it is necessary for the owner or lessor or
any member of this or her family to use either a bathroom or
kitchen facility in common with the prospective tenant.44
As with the employment discrimination provisions discussed
above, the definition of sexual orientation applicable to the
housing and real estate discrimination prohibitions in the
ordinances varies widely. In addition, as with the employment
discrimination provisions discussed above, some, but not all, of
the ordinances contain exemptions for housing owned or real estate
transactions engaged in by religious organizations.45
Procedural Provisions
Most local ordinances have a one year statute of limitations
applicable to actions brought thereunder, measured from the date
of the alleged discriminatory acts. Davis, however, measures the
limitations period from the time which the plaintiff knew or should
have known of the defendant's act which the plaintiff alleges is
a violation of the ordinance.46 Long Beach grants one year from the
undefined "accrual" of the cause of action.47 Sacramento allows
actions to be brought within one year and six months from the time
which the plaintiff knew or should have known of the "the
defendant's decision or action which plaintiff alleges is based on
plaintiff's sexual orientation" or the defendant 's act of
retaliation against plaint.iff.48
San Francisco has a comprehensive administrative procedure by
43 City of Davis Municipal Code, Section 7A-9.
44 City of Sacramento Municipal Code, Section 14 . 103 (b) (1) ;
City of West Hollywood Ordinance No. 7, Section 5 (B) (1) .
a5 See e.g. , City of Davis Municipal Code, Section 7A-12 .
46 City of Davis Municipal Code, Section 7A-16.
47 City of Long Beach Municipal Code, Section 5. 09. 040(E) .
48 City of Sacramento Municipal Code, Section 14 . 110.
11
ACLU FOUNDATION
OF SOUTHERN CALIFORNIA
which any person who believes that he or she has been discriminated
against in employment or housing may request the San Francisco
Human Rights Commission to investigate and mediate his or her
complaint." The San Francisco Human Rights Commission also is
empowered to investigate complaints respecting housing
discrimination and to attempt to eliminate unlawful practices by
means of concilation, persuasion, requests to withhold the housing
accomodation involved until the complaint is resolved, and the
holding of administrative hearings, and appeals therefrom.50 Davis
also has a Human Relations Commission which an aggrieved person can
request to investigate or mediate his or her dispute.S1 In neither
case is the exhaustion of administrative remedies made an express
prerequisite to the bringing of a civil action for violation of the
ordinance. Other jurisdictions appear not to make such
administrative remedies available to those alleging discrimination.
Almost all of the ordinances expressly allow civil actions to
be brought by any person whose rights are violated under the
ordinance.5` Injunctions against the commission or likely future
commission of violations of the ordinances generally may be brought
by any aggrieved person, by the City or District Attorney or by any-
person or entity which will fairly and adequately represent the
interest of the protected class. Cathedral City requires an
attempt by the City Attorney to resolve the. complaint, a formal
determination that action to prohibit such unlawful practices
cannot or will not be maintained by .the California Department of
Fair Employment and Housing, and prior approval of the City Council
49 City and County of San Francisco Police Code, Sections
.3307 (a) and (b) .
50 City and County of San Francisco Police Code, Section
3307 (b) .
51 City of Davis Municipal Code, Section 7A-15 (c) .
52 West Hollywood's ordinance is silent on this point.
53 Davis, Long Beach, and Sacramento apparently only allow
actions to be brought by "an aggrieved party. " (City of Davis
Municipal Code, Section 7A-15 (b) ; City of Long Beach Municipal
Code, Sections 5.09. 040(A) and (C) ; City of Sacramento Municipal
Code, Section 14. 108 (a) . ) West Hollywood's ordinance does not
specify whether or not injunctive relief is available thereunder.
12
1.0
t
ACLU FOUNDATION
OF SOUTHERN CALIFORNIA
before such actions are brought by the City Attorney.SO
In addition, three of the ordinances, but not the others,
impose criminal penalties for different violations of their
provisions. Sacramento makes violation of its ordinance's
employment notice provisions an infraction, punishable by levy.ss
San Francisco makes violation of the housing provisions of its
ordinance a misdemeanor, punishable by a fine of nor more than
$2 , 000 or by imprisonment in the County Jail for a period of not
more than six months, or both.56 West Hollywood provides that any
person or entity who violates or aids in the violation of any of
the provisions of its ordinance is guilty of a misdemeanor,
punishable by not more than $500. Each violation of any provision
of the ordinance and each day during which any such violation is
committed or continued constitutes a separate offense under the
West Hollywood Ordinance.57
Finally, Long Beach and San Diego alone provide for the
imposition of penalties if an action is instituted frivolously.58
Monetary Recovery
Eight of the ordinances specify that monetary recovery is
available to an aggrieved party for violations of the ordinances'
provisions.59 The measure of damages recoverable vary widely,
however.
5' City of Cathedral City Municipal Code, Sections 11 . 88. 110
(B) , and (D) .
ss City of Sacramento Municipal Code, Section 14. 109 (a) .
56 City and County of San Francisco Police Code, Section 3308.
57 Cit of West Hollywood ywood Ordinance No. 71 Section 10. ,
S8 City of Long Beach Municipal Code, Section 5. 09. 040 (F) ;
City of San Diego Municipal Code, Section 52.9608.
59 The ordinances of Cathedral City and West Hollywood do not
expressly address the availability of monetary recovery in a civil
action.
13
ACLU FOUNDATION
OF 50UTHERN CALIFORNIA
Sacramento allows the recovery of actual damages plus costs.60
Berkeley, Long Beach, Los Angeles, and Santa Monica allow a minimum
recovery of $200 in statutory damages, in addition to any actual
damages.62 Davis allows a minimum recovery of $250, plus actual
damages.6San Diego allows recovery of uD to three times the
amount of actual damages, but in no case less than $250.63 Finally,
San Francisco provides for recovery; in all cases, of three times
the amount of special and general damages or, in the case of a
rental, three times the amount of one month's rent. San Francisco
also allows for an additional discretionary award of between $200
and $400 on top of trebled 'damiiges' or rent, plus costs.64
Santa Barbara, which regulates only city contractors, does not
impose damages, but can, in cases where discrimination is found,
terminate, cancel or suspend the contract, in whole or in part;
determine that as to future contracts the contractor will be
considered disqualified, and impose a penalty of $25 for each
calendar day or portion thereof for each person who wrongfully was
denied employment.65
G0 City of Sacramento Municipal Code, Section 14 . 104 (a) (1) .
61 City of Berkeley Municipal Code, Section 13 .28 .080 ("actual
damages . . . and not less than two hundred dollars but not more than
four hundred dollars in addition thereto") ; City of Long Beach
Municipal Code, Section 5. 09:040 ("The actual damages suffered and
incurred by the person aggrieved" plus "A civil penalty payable to
the person aggrieved in the sum of two hundred dollars in addition
to the actual damages of the person aggrieved; provided that the
civil penalty shall be imposed regardless of whether the person
aggrieved proves actual damages" plus "the costs of the person
aggrieved in connection with the civil action") ; City of Los
Angeles Municipal Code, Section 49.76 ("actual damages, costs, . . . ,
and- not less than Two Hundred Dollars ($200) but .not more than Four
Hundred Dollars ($400) in addition thereto") ; City of Santa Monica
Municipal Code, Section 4907 (same) .
62 City of Davis Municipal Code, Section 7A-15 (a) ("actual
damages (but not less than $250) " plus "reasonable costs") .
63 City of San Diego Municipal Code, Section 52 .9610. .
64 City and County of San Francisco Police Code, Section 3306.
65 City of Santa Barbara Municipal Code, Sections 9. 126. 020 (5)
and (6) .
14
ACLU FOUNDATION
OF SOUTHERN CALIFORNIA
When discrimination is proven, attorneys, fees must be awarded
to the plaintiff under the ordinances off' Berkeley, Long Beach, Los
Angeles, San Diego, and Santa Monica. San Francisco makes the
recovery of attorneys' fees by a prevailing party discretionary
with the court.67 By distinction, Davis and Sacramento allow
reasonable attorneys's fees to whoever is the prevailing party.68
Cathedral City's and West Hollywood's ordinances contains no
express attorney fee provisions.
In addition to compensatory damages, the ordinances of
Berkeley, Los Angeles, San Diego, San Francisco, and Santa Monica
allow for the imposition of punitive damages "in a proper case"
against defendants found to have violated the ordinance.69 Davis
expressly prohibits awards of punitive or exemplary damages under
its ordinance.70 The ordinances of Cathedral City, Long Beach,
Sacramento, and West Hollywood do not address the availability of
punitive damages.
Conclusion
Although many jurisdictions in California have no sexual
orientation nondiscrimination ordinance, such ordinances have been
enacted in some form in most of the most populous communities
within the State, including Los Angeles, San Francisco, San Diego,
and Sacramento. As this memorandum demonstrates, both the
substantive and the procedural provisions of the ordinances that
66 City of Berkeley Municipal Code, Section. 13. 28. 080; City
of' Long Beach Municipal Code, Section 5. 09. 040 (B) (4) ; City of Los
Angeles Municipal Code, Section 49.76; City of San Diego Municipal
Code, Section 52 .9610; City of Santa Monica Municipal Code, Section
4907 .
67 City and County of San Francisco Police Code, Section 3306.
68 City of Davis Municipal Code, Section 7A-15 (A) ; City of
Sacramento Municipal Code, Section 14 . 108 (a) (3) .
69 City of Berkeley Municipal Code, Section 13 .28. 080; oCity
of Los Angeles Municipal Code, Section 49.76; City of San Diego
Municipal Code, Section 52.9610; City and Country of San Fiancisco
Police Code, Section 3306; City of Santa Monica Municipal Code,
Section 4907.
70 City of Davis Municipal Code, Section 7A-15 (a) .
15
� � �3
ACLU FOUNDATION
OF SOLMiERN CALIFORNIA
exist throughout the State differ considerably from one another.
Not only does who is regulated and what such regulations require
differ depending upon the jurisdiction involved, but so do such
basic procedural rules as the applicable statute of limitations,
the existence of administrative remedies, the availability of
injunctive relief, and the measure of monetary recovery allowed.
Such lack of uniformity in what is required of employers and those
engaging in real estate transactions, and in what employees and
those renting, buying, insuring or borrowing against property can
expect leads to considerable confusion and added costs for those
who do business in or move between various parts of the state. A
major advantage of state-wide lgislation prohibiting
discrimination on the basis of sexual orientation in employment and
housing in California would be the elimination of the multiple
discrepancies in this area of the law that currently exist among
the communities of our state.
If we can be of any further assistance, please let us know.77
71 The ACLU wishes gratefully to acknowledge the assistance
of Rhonda Brown and Valerie Joy, students at the Southwestern
University School of Law externing at the ACLU, in connection with
the preparation of this memorandum.
16
I- Z'�
ATTACHMENT "B"
DRAFT
CHAPTER
DISCRI1 IINATION ON THE BASIS
OF SEXUAL ORIENTATION
Sections:
1.07.010 Definitions
1.07.120 Employment
1.07.030 Housing and Other Real Estate Transactions
1.07.040 Business Establishments and Practices
1.07.050 City Facilities and Services
. 1.07.060 Educational Institutions
1.07.070 Liability for Violation
1.07.080 Enforcement
1.07.090 Limitation on Action
1.07.100 Exception
1.07.110 Severability
1.07.10 Definitions
(a) "Business establishment" means any entity, however organized, which
furnishes goods, services or accommodations to the general public. An otherwise qualifying
establishment which has membership requirements shall be considered to furnish services to the
general public if its membership requirements (1) consist only of the payment of fees; (2)
consist of requirements under which a substantial portion of the residents of this City could
qualify; or (3) consist of an otherwise unlawful business practice.
(b) "Employee" does not include any individual employed by his or her
parents, spouse or child or any individual employment under a special license in a nonprofit
sheltered workshop or rehabilitation facility.
(c) "Employer" includes the City of San Luis Obispo and any person regularly
employing five (5) or more persons, or any person acting as an agent of an employer, directly
IeIT
or indirectly. An "employer" shall not include a religious association or corporation not
organized for private profit.
(d) "Employment agency" includes any person undertaking for compensation
to procure employees or opportunities to work. .
(e) "Labor organization" includes any organization which exists and is
constituted for the purpose, in whole or in part, of collective bargaining or of dealing with
employers concerning grievances, terms or conditions of employment, or of other mutual aid
or protection.
(f) "Person" means any natural individual, person, firm, corporation,
partnership or other organization, association, or group of persons however organized.
(g) "Sexual Orientation" means actual or supposed heterosexuality,
homosexuality, or bisexuality.
1.07.020 Employment.
(a) Unlawful employment practices.
(1) Discrimination by Employer. It,shall be an unlawful employment
practice for an employer to fail or refuse to hire, or to discharge any person, or otherwise to
discriminate against any person with respect to compensation, terms, conditions or privileges '
of employment on the basis (in whole or in part) of such person's sexual orientation.
(2) Segregation by Employer. It shall be an unlawful employment
practice for an employer to limit, segregate or classify employees or applicants for employment
in any manner which would deprive any person of employment opportunities, or adversely
affect his or her employment status on the basis (in whole or in part) of such person's sexual
orientation.
(3) Employment Agency. It shall be an unlawful employment practice
for an employment agency to fail or refuse to refer for employment any person, or otherwise
to discriminate against any person on the basis (in whole or in part) of such person's sexual
orientation.
(4) Labor Organization. It shall be an unlawful employment practice for
a labor organization to fail or refuse to include in its membership or to otherwise discriminate
against any person, or to limit, segregate or classify its membership; or to classify or fail or
refuse to refer for employment any person in any way which would deprive or tend to deprive
such person of employment opportunities, or otherwise adversely affect her or his status as an
employee or as an applicant for employment on the basis (in whole or in part) of such person's
sexual orientation.
(5) Job Training. It shall be an unlawful employment practice for an
employer, and employment agency or a labor organization to discriminate against any person
in admission to, or employment in, any program established to provide apprenticeship or other
training or retraining, including any on-the-job training program on the basis (in whole or in
part) of such person's sexual orientation.
2
OZ 16
(6) Advertising. It shall be an unlawful employment practice for an
employer, employment agency or a labor organization to print, publish, advertise or disseminate
in any way, any notice or advertisement with respect to employment, membership in, or any
classification or referral for employment or training by any such organization, which indicates
an unlawful discriminatory practice based on a person's sexual orientation.
(b) Subterfuge. It shall be unlawful to do any of the acts mentioned in this
Section for any reason that would not have been asserted wholly or partially, but for the sexual
orientation of any person.
(c) Bona Fide Occupational Qualification Not Prohibited; Burden of Proof.
(1) Nothing contained in this Section shall be deemed to prohibit selection
or rejection based upon a bona fide occupational qualification.
(2) In any action brought under Section 1.07.080, if a party asserts that
an otherwise unlawful discriminatory practice is' justified as a bona fide occupational
qualification, discrimination is in fact a necessary result of a bona fide occupational
qualification; and (b) that there exists no less discriminatory means of satisfying the
occupational qualification.
(d) Exceptions. It shall not be an unlawful discriminatory practice for an
employer to observe the conditions of a bona fide employee benefit system or plan (including,
but not limited to, a contractual seniority system), provided such systems or plans are not a
. subterfuge to evade the purposes of this chapter.
1.07.030 Housing and Other Real Estate Transactions.
(a) Unlawful Real Estate Practices.
(1) In General. It shall be an unlawful real estate practice for any person
to interrupt, terminate, or fail or refuse to initiate or conduct any transaction in real property,
including but not limited to the rental thereof, to require different terms for such transaction,
to include the terms or conditions of a transaction in real property any clause, condition or
restriction, or falsely to represent that an interest in real property is not available for transaction
on the basis (in whole or in part) of any person's sexual orientation.
(2) Credit and Insurance. It shall be an unlawful real estate practice for
any person to refuse to lend money, guarantee the loan, accept a deed of trust or mortgage,
or otherwise refuse to make available funds for the purchase, acquisition, construction,
alteration, rehabilitation, repair or maintenance of real property, or impose different conditions
on such financing , or refuse to provide title or other insurance relating to the ownership or use
of any interest in real property, on the basis (in whole or in part) of any person's sexual
orientation.
(3) Tenant's Services. It shall be an unlawful real estate practice for any
person to refuse or restrict facilities, services, repairs or improvements for any tenant or lessee
on the basis (in whole or in part) of any person's sexual orientation.
(4) Advertising. It shall be an unlawful real estate practice for any
person to make, print, publish, advertise or disseminate in any way, any notice, statement or
3
1 - d.'7
advertisement with respect to a transaction or proposed transaction in real property, or with
respect to financing related to any such transaction, which unlawfully indicates or attempts to
indicate any unlawful preference, limitation or discrimination based on a person's sexual
orientation.
(b) Subterfuge. It shall be unlawful to do any of the actions mentioned in this
Section for any reason that would not have been asserted, wholly or partially, but for the sexual
orientation of any person.
(c) Exceptions.
(1) Owner Occupied and Small Dwellings. Nothing in this chapter shall
be construed to apply to the rental or leasing of any housing unit in which the owner or lessor
or any member of his or her family occupies one of the living unites and either (a) it is
necessary for the owner or lessor to use either a bathroom or kitchen facility in common with
the prospective tenant, or (b) the structure contains less than three (3) dwelling units.
(2) Effect on Other Laws. Nothing in this chapter shall be deemed to
permit any rental or occupancy of any dwelling unit or commercial space otherwise prohibited
by law.
1.07.040 Business Establishments and Practices.
(a) Unlawful Business Practice.
(1) In General. It shall be an unlawful business practice for any person
to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, •
advantages and accommodations of any such person's sexual orientation.
(2) Credit. It shall be an unlawful business practice for any person to
deny credit to any person on the basis (in whole or in part) of such person's sexual orientation.
(3) Advertising. It shall be an unlawful business practice for any person
to make, print, publish, advertise or disseminate in any way any notice, statement or
advertisement with respect to any business establishment which indicates that such establishment
engages or will engage in any unlawful business practice based on a person's sexual orientation.
(b) Subterfuge. It shall be unlawful to do any of the acts mentioned in this
Section for any reason that would not have been asserted, wholly or partially, but for the sexual
orientation of any person.
1.07.050 City Facilities and Services
(a) Unlawful Service Practices.
(1) City Facilities. It shall be an unlawful service practice for any person
to deny any person the full and equal enjoyment of, or to place different terms and conditions
on the availability of the use of any City facility on the basis (in whole or in part) of such
person's sexual orientation.
(2) City Services. It shall be an unlawful service practice for any person
to deny any person the full and equal enjoyment of, or to impose different terms or conditions
on the availability of, any City service on the basis (in whole or in part) of such person's sexual
4
� ' ;L$
orientation. ,
(3) City Supported Facilities and Services. It shall be an unlawful service
practice for any person to deny any person the full and equal enjoyment of, or to impose
different terms and conditions upon the availability of, any service, program or facility wholly
or partially funded or otherwise supported by the City of San Luis Obispo on the basis (in
whole or in part) of such person's sexual orientation. This subsection shall not apply to any
facility, service or program which does not receive any assistance from the City of San Luis
Obispo which is not provided to the public generally.
(4) Advertising. It shall be an unlawful service practice for any person
to make, print, publish, advertise of disseminate in any way any notice, statement or
advertisement with respect to any service or facility provided by either the City of San Luis
Obispo or an organization described in subsection 3 which indicates that the City of San Luis
Obispo or an organization described in subsection 3 engages in or will engage in unlawful
service practices based upon a persons sexual orientation.
(b) Subterfuge. It shall be an unlawful discriminatory practice to do any of the
acts mentioned in this Section for any reason which would not have been asserted, wholly or
partially, but for the sexual orientation of any person.
1.07.060 Educational Institutions.
(a) Unlawful Educational Practices.
(1) Admission. It shall be an unlawful educational practice for any
person to deny any person admission, or to impose different terms or conditions on admission,
on the basis (in whole or in part) of such person's sexual orientation.
(2) Services. It shall be an unlawful educational practice for any person
to deny any person the full and equal enjoyment of, or to impose different terms or conditions
upon the availability of, any service or program offered by an educational institution on the
basis (in whole or in part) of such person's sexual orientation.
(3) Facilities. It shall be an unlawful educational practice for any person
to deny any person the full and equal enjoyment of, or to impose different terms or conditions
upon the availability of, any facility owned or operated by an educational institution, on the
basis (in whole or in part) of such person's sexual orientation.
(4) Advertising. It shall be an unlawful educational practice for any
person to make, print, publish, advertise or disseminate in any way any notice, statement or
advertisement with respect to an educational institution which indicates that such institution
engages in, or will engage in, unlawful educational practices.
(b) Subterfuge. It shall be an unlawful discriminatory practice to do any of the
acts mentioned in this Section for any reason which would not have been asserted, wholly or
partially, but for the sexual orientation of any person.
(c) Exception. It shall not be an unlawful discriminatory practice for a religious
or denominational institution to limit admission, or give other preference to applicants of the
name religion.
5
1 s ��
1.07.070 Liability. Any person who violates anylprovision of the chapter or who aids
in the violation of any provisions of this chapter shall be liable for, and the court shall award
to the person whose rights are violated, actual general and special damages, costs, and
attorneys' fees.
1.07.080 Enforcement.
(a) Civil action. Any aggrieved person may enforce the provisions of this
chapter by means of a civil action.
(b) Injunction.
(1) Any person who commits, or proposes to commit, an act in violation
of this chapter may be enjoined therefrom by any court of competent jurisdiction.
(2) An action for injunction under this subsection may be brought by any
aggrieved person, or by any person or entity which will fairly and adequately represent the
interests of the protected class.
(c) Criminal Action. Notwithstanding any provision of this code to the contrary,
no criminal penalties shall attach to any violation of the provisions of this chapter.
1.07.090 Limitation on Action. Actions under this chapter must be filed within one (1)
year of the alleged discriminatory acts.
1.07.100 Exception. No part of this chapter shall apply to any bona fide religious
organization.
1.07.110 Severability. If any part of provision of this chapter or the application thereof
to any person or circumstance is held invalid, then the remainder of the chapter, including the
application of such part or provision to other persons or circumstances, shall not be affected
thereby and shall continue in full force and effect. to this end, provisions of this chapter, in
whole and in part, are severable.
6
1 -3®
t ATFACIENT "C"
DRAFT
EMPLOYMENT DISCRIMINATION
Sections:
5.09.010 Definitions. -
5.09.020 Discrimination prohibited.
5.09.030 Bona fide business requirements.
5.09.040 Enforcement.
5.09.50 Severability.
5.09.010 Definitions.
A. 'Business establishment" means any person that offers goods or services to
. the general public. An otherwise qualifying organization which has membership requirements
shall be considered to be a "business establishment" if the following criteria are met:
1. Its membership requirements consist only of the payment of fees; or
2. Its membership standards are standards under which a substantial
portion of the residents of the city of San Luis Obispo could qualify; or
3. Its membership standards constitute an effort to avoid compliance with
the requirements of the ordinance codified in this chapter through subterfuge by creating
membership standards with no bona fide relationship to the purpose or nature of the
organization.
The term "business establishment" shall not include the following: (a)
Any religious association or corporation not organized for private profit: (b) The federal
government or any agency thereof or the state government or any agency or local subdivision
thereof, including but not limited to countries, cities, districts, authorities and agencies.
B. "Employee" does not include any individual employed by his or her parents,
spouse, or child, or any individual employed under a special license in a nonprofit sheltered
workshop or rehabilitation facility.
C. "Person" means any natural person, and any firm, corporation, partnership
or other organization, association or group of persons, however organized.
D. "Sexual orientation" means heterosexuality, homosexuality or bisexuality.
I - 31
5.09.020 Discrimination prohibited.
r•
A. No business establishment within the city of San Luis Obispo or operating
within the city of San Luis Obispo which employs a minimum of five employees shall
discriminate against any person by failing or refusing to hire or by disciplining or discharging
any person or in any manner discriminating against any person with respect to compensation,
terms, conditions or privileges of employment, because of the sexual orientation of any person.
B. No provision of the chapter shall be construed to make legal any act or
omission by any person which is otherwise illegal under any provision of law.
D. It shall not be an unlawful discriminatory practice for a business
establishment to observe the terms of a bona fide employment benefit system.
5.09.030 Bona fide business requirements. ,
A. No provision of this chapter shall be construed to prohibit any act or
omission by any business establishment based on bona fide business requirements of that
business establishment.
B. No provision of this chapter shall be construed to prohibit any act or omission
by any business establishment permitted by state or federal law with respect to disability,
handicap or medical condition, or to permit any act or omission by any business establishment
prohibited by state or federal law with respect to disability, handicap or medical condition. '
5.09.040 Enforcement.
A. Any person aggrieved by violation of any provision of the chapter, may
enforce said provision or provisions by a civil action; provided that such action shall be brought
in the person's individual capacity.
B. Any person who violates any provision of this chapter or who knowingly aids
another in the violation of a provision of this chapter, shall be liable to the person aggrieved
for the following:
1. The actual damages suffered and incurred by the person aggrieved;
2. A civil penalty payable to the person aggrieved in the sum of two
hundred dollars in addition to the actual damages of the person aggrieved; provided that the
civil penalty shall be imposed regardless of whether the person aggrieved proves actual
damages;
3. The costs of the person aggrieved in connection with the civil
action;
4. The attorney's fees of the person aggrieved in connection with the
civil action.
C. Any person who commits or proposes to commit an act in violation of this
chapter may be enjoined therefrom by a court of competent jurisdiction. Action for an
injunction under the ordinance codified in this chapter may be brought by any aggrieved person.
D. No criminal penalties shall attach for any violation of the provisions of this
chapter.
E. Any civil action pursuant to the provisions of this chapter shall be filed within-
one year of the accrual of the cause of action.
F. Any person who files or maintains a frivolous action under this chapter shall
be liable to the business establishment for expenses, including attorney fees, incurred in defense
of the action. "Frivolous" as used herein means totally and completely without merit or for the
sole purpose of harassing an opposing party. The liability imposed by this subsection is in
addition to any other liability imposed by law.
5.09.050 Severability.
All provisions of this chapter are severable. If any part or provisions of this chapter is
held invalid for any reason by the final order of a court of competent jurisdiction, the remainder
of the chapter shall not be affected and shall remain in full force and effect.
I - 33
ATTACHMENT "D"
RESOLUTION NO. (1992 Series)
A RESOLUTION OF THE COUNCIL;OF THEZTTY OF SAN LUIS OBISPO
AMENDING THE CITY'S AFFIRMATIVE ACTION PLAN
WHEREAS, the City of San Luis Obispo is committed to the concept of Equal
Employment Opportunity as a basic principle that all persons shall be given equal access and
consideration to positions in the public service limited only by their ability and qualifications
to do the job; and,
WHEREAS, the City of San Luis Obispo has an Affirmative Action Program adopted
in 1991; and,
WHEREAS, the City's Affirmative Action Policy Statement says, "All-persons seeldng
employment with the City and all City employees shall be treated equally and without
discrimination;" and,
WHEREAS, the Affirmative Action Policy Statement also says, "All recruitments,
hiring, placements, transfers and promotions will be made on the basis of individual
qualifications for the positions being filled;" and
WHEREAS, the City of San Luis Obispo is committed to a policy that ensures that no
City employee is subject to unlawful discrimination on the bases of sex, race, national origin,
religion, age, color, disability or marital status;
NOW, THEREFORE, BE IT RESOLVED, that-Ike City Council of the City of San Luis
Obispo hereby amends the Affirmative Action Program to include sexual orientation as a
protected class.
1 - 34
Resolution No. (1992 Series)
Upon motion of , seconded by
and on the following roll call vote:
AYES:
NOES:
ABSENT:
the foregoing resolution was adopted this day of March, 1992.
Mayor Ron Dunin
ATTEST:
Pam Voges, City Clerk
City Administrative Officer
City Attorney
Personnel Director
1- 35