03-26-12 Council Agenda & Packet

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The following is a response from the city of South Bead's legal department to a memo sent by Kathy Cekanski-Farrand to members of the South Bend Common Council regarding substitute bill 30-I0. It was authored by Madean Depose, a city attorney who has represented the Human Rights Commission for 20 years. I believe that the substitute ordinance 30-10 is legally valid... More often than not, lawyers have respectfully differing views on the same subject matter. Only courts can resolve differences of legal opinion between lawyers, and different courts often view the same issue differently. The U.S. Supreme Court has the final word, not because it's better, but because it's last. Please note that the Employment Fairness ordinance involved minimal new drafting; it simply adds a few changes to the pre-existing South Bend Human Rights ordinance. That ordinance was adopted by the Common Council in 1973 and has served nearly 40 years without creating any unresolvable problems of interpretation. From time to time questions of interpretation arise, but the Commission draws on a substantial body of well developed federal law on the topic of discrimination to aid in its interpretations. The Seventh Circuit Federal Court of Appeals which governs Indiana decides 20-30 discrimination cases a year which guide the Commission as it handles its caseload. The Employment Fairness Ordinance (Substitute) makes only five changes to the 1973 ordinance: 1. It adds sexual orientation and gender identity as protected classes in "employment matters" only, as distinct from fair housing and public accommodation for which no protection is extended on the basis of sexual orientation and gender identity. 2. It defines the terms sexual orientation and gender identity. 3. It creates an exception for certain organizations and entities based on the Supreme Court case Boy Scouts of American and M,onmouth Council, et al v. Dale, (2-127.1(e)). 4. It clarifies that the ordinance is not intended to require benefit coverage for domestic partners of employees. (2-127.1(f)). 5. It provides remedies "to the extent consistent with state law." (2-128(i)(1)(B) Of all the above changes to 'South Bend's 1973 Human Rights ordinance, only above item #4 is totally new. gyprything Everything else was part of the 2006 version of the ordinance. The only other difference between the 2006 and 2010 ordinance is as noted in #1 above, protection on the basis of sexual orientation or gender identity is limited to "the matter of employment." Anything in Ordinance 30-10 that does not change the 1973 version of the ordinance means that the pre-existing language still applies including.