One of the perennial hot topics during the legislative session is a statewide anti discrimination bill that would prohibit discrimination in housing and employment on the basis of sexual orientation or gender identity.
The first municipality to adopt a sexual-orientation anti-discrimination ordinance was Salt Lake City, which adopted it in November 2009 with the support of the LDS Church. Incidentally, my view is that the LDS Church was very shrewd in its support of the ordinance. By throwing its weight behind the ordinance it was able to secure specific religious exemptions as well as give credence to its position that the fight for marriage isn’t motivated by any animus against gays and lesbians. Since that time, 18 additional municipalities or local governments have passed similar ordinances, for a total of 19 state wide.
The ordinances passed by the various municipalities are, for all intents and purposes, identical. Each prohibits discrimination in housing and employment on the basis of sexual orientation and gender identity. Each contains a carveout for religious and expressive organizations.
Senator Urquhart (the sponsor of SB100) is actively comparing his bill to these ordinances, which have the significant advantage of express LDS support. But is SB100 essentially the same thing?
Let’s compare using the current text of SB100 (as of 2/4/14) and the text of the Salt Lake City municipal ordinance (the first ordinance passed and the one on which others are modeled)
To be clear, this is not an opinion piece or a comment on either the ordinances or SB100 – it’s simply a comparison.
The Salt Lake City Ordinance.
The Salt Lake City ordinance prohibits discrimination in housing and employment on the basis of sexual orientation or gender identity against an otherwise qualified person: (i) by employers and landlords; (ii) by employment agencies and brokers/salespeople; (iii) by labor organizations; (iv) in training programs provided by employers, employment agencies, labor organizations, vocational schools, and (v) in notices for employment. It also prohibits retaliation, in pretty much all forms, for someone opposing or reporting discrimination, or participating in an investigation or proceeding regarding discrimination.
The Salt Lake City ordinance provides for filing a complaint with a city administrator to report alleged discrimination and for an investigation into the claims. The complaint must be filed within 180 days after an event of unlawful discrimination for that event to form the basis for relief provided under the ordinance.
An attempt at voluntary conciliation is required under the Salt Lake City ordinance if an investigation results in a conclusion that discrimination has occurred. If voluntary conciliation fails, the case is referred to the City Attorney, who has discretion whether to proceed with an enforcement action, which can result in a maximum $1,000 fine for organizations with more than 50 members of employees (otherwise the maximum fine is $500).
The Salt Lake City ordinance is somewhat ambiguous as to whether the City Attorney recovers the penalty on behalf of the city or on behalf of the complainant. I assume it is the latter, even though the ordinance expressly disclaims any private right of action (i.e. no person can initiate suit under the ordinance on their own). Furthermore, although the ordinance isn’t precisely clear, I believe that a complainant would be entitled to recover the statutory penalty for each incident of discrimination that occurred during the 180 day time frame prior to when they submitted their claim.
Thus, the only remedy (aside from voluntary conciliation) available to a complainant in a city with a nondiscrimination ordinance modeled after the one adopted by Salt Lak City is the $500 – $1000 statutory penalty per occurrence.
Finally, the Salt Lake City ordinance also expressly exempts (i) religious organizations, defined as “a religious corporation, association, educational institution, society, trust or any entity or association which is a wholly owned or controlled subsidiary or agency of any religious corporation, association, society, trust or corporation sole,” (ii) an expressive association such as the Boy Scouts of America (and perhaps only the Boy Scouts of America), and (iii) the United States Government and Utah state and local governments (except for Salt Lake City itself).
Unlike the Salt Lake City and other municipal ordinances, SB100 would employ the framework of the Utah Anti-Discrimination Act and the Utah Fair Housing Act to achieve its goals. While the substantive prohibitions on discrimination and the exemptions therefrom are essentially the same, as is the 180 day period in which to file a claim, the remedies are meaningfully different.
Where the municipal ordinances provide only for monetary damages up a statutory penalty based on instances, SB100 would authorize the full panoply of remedies that attach to other types of prohibited discrimination, which would include injunctive relief (i.e. forcing or prohibiting an employer from taking certain actions), back pay, and attorneys’ fees. In addition, the Utah Anti-Discrimination Act would provide for a private right of action (upon exhausting the required administrative remedies) consistent in large measure with the protections afforded under under Title VII of the Civil Rights Act – at least as to how the claim is judicially addressed and the associated standards of proof (although any claim would likely be pursued in state court due to the current absence of a federal equivalent).
SB100 also contains provisions specifically designed to address concerns related to gender identity, including the imposition of dress codes and use of restrooms for transgendered persons.
The substantive prohibitions of the municipal ordinances and SB100 are effectively identical, with the addition of provisions relating to the application of dress codes and restroom rules for transgendered persons.
Where the two pieces of legislation diverge is with respect to remedies. Although discrimination is prohibited under the municipal ordinances, the remedies are extraordinarily limited, and the decision to take judicial action is left to the discretion of the municipal attorney. Under SB100, the full remedies available under the Utah Anti-Discrimination Act and the Utah Fair Housing Act – including a private right of action and damages – would be available to persons asserting a sexual orientation or gender identity claim, making the application of the law to discriminating employers and landlords potentially significantly more severe.