03-26-12 Council Agenda & Packet

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1. Inapplicability of the ordinance to an employer with fewer than six employees (Note — The Federal Civil Rights Act of 1964, 42 U.S.C. § 2000e' does not indicate whether "employers" means full or part time although it does indicate that. an employee must have worked at least 20 weeks of a calendar year (42 U.S.C. § 2000e-b); and 2. The apparent lack of a definition of "employment discrimination" within. the ordinance because the ordinance is patterned on the Federal Civil Rights Act of 1964, 42 U.S.C. § 2000e, which', too, does not contain a definition of employment'discrimination. Both' the Civil Rights Act of 1964 and the South Bend ordinance contain prohibitions against discrimination in employment. Like the EEOC, of which the South Bend Human Rights Commission is a locally designated agency, the.Haman Rights Commission relies on common law court interpretations to analyze what is or is not "employment discrimination" as that concept evolves. By the way, workplace harassment is a common law expansion of "employment discrimination." Matters of Concern in the Amended Language it appears there is no dispute about the newly added clarification language of 2-127.1(f) regarding non-application of employment benefits to domestic partners. Therefore,.only the definitions of sexual orientation and gender identity and the Boy Scouts case exception under 2- 127.1(e) could possibly be subject of any "vagueness" or similar concerns. I will respond to these separately: 1. Definition of "sexual orientation." As noted previously, the definition of "sexual orientation" contained in Ordinance 30-10 was part of South Bend's 2006 ordinance. It is not new in 2010. 1 have attached the "sexual orientation" definition contained within all Indiana communities adopting similar ordinances. South Bend's ordinance is identical to that of Indianapolis, and frankly, I think it's the best of all the definitions used throughout the state. We now have the benefit of many years of experience by other Indiana communities, none of which have indicated_ that their definition is a problem or that the definition has been challenged for vagueness. 2. Definition of "gender identity." Another attachment is enclosed indicating that "gender identity" is defined only in the ordinances of Indianapolis and Bloomington. Again South Bend's ordinance uses the Indianapolis definition verbatim. The Indianapolis/Marion County ordinance has not been challenged in any way since its adoption in 2006. The attachment hereto also includes definitions of "gender identity" used in local ordinances adopted in some other communities, i.e., San Francisco, California, Columbus, Ohio, Ann Arbor, Michigan, Madison, Wisconsin, and Lansing, Michigan. You will see that all are fairly similar. The Indianapolis/Marion County version which Bill 30-10 uses seems to encapsulate well the major components of "gender identity": (1) that it concerns an individual's actual .or perceived (2) self-identity, self-image, appearance, expression or behavior; (3) which may be different from the person's assigned sex at birth.