HomeMy WebLinkAbout10154-12 Amend Code Various Sections Article 9, Chapter 2 New Provisions Addressing Gender Identiy and Sexual OrientationORDINANCE No. ,e,r)4-,
Passed by the Common Council of the City of South Bend, Indiana
Attest:
Attest:
March 26,
20 12
Presented by me to the Mayor of the City of South Bend, Indiana
March 27,
20 12
City Clerk
President of Common Council
Approved and signed by me -L I 20 lZL
City Clerk
Majw
Ordinance No. y 0 J ( �,.
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA, AMENDING VARIOUS SECTIONS OF ARTICLE 9, OF CHAPTER 2 OF
THE SOUTH BEND MUNICIPAL CODE BY THE INCLUSION OF NEW PROVISIONS
ADDRESSING
GENDER IDENTITY AND SEXUAL ORIENTATION
STATEMENT OF PURPOSE AND INTENT
As Mayor Pete Buttigieg noted in his swearing -in speech on January 1, 2012, "In setting
the vision for local government, it helps to recall why city government exists in the first place: to
enable people to go about their lives and focus on what really matters. Leading a healthy, happy
life is enough of a challenge without having to worry about basic services." Thus, it is in this
spirit that the current South Bend Human Rights Ordinance should be amended to prohibit
discrimination based on sexual orientation and gender identity, and to provide remedies for such
discrimination occurring within the city limits.
This legislative initiative is in accordance with the Resolution of the South Bend Human
Rights Commission dated June 17, 2010; with former Mayor Stephen J. Luecke's Executive
Order 1 -2009; and with the South Bend Human Rights Commission Position Statement adopted
on January 19, 2005 and formally sent to the South Bend Common Council on March 10, 2005.
The proposed regulations are believed to be reasonable and necessary and in the best
interests of the City of South Bend, Indiana.
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF
THE CITY OF SOUTH BEND, INDIANA, as follows:
SECTION I. Chapter 2, Article 9 of the South Bend Municipal Code (Human Rights
Ordinance) shall be and hereby is amended at Section 2 -127 to read as follows:
Sec. 2 -127. Purpose.
(a) It is the public policy of the City of South Bend to provide all of its citizens equal
opportunity for education, employment, access to public conveniences and accommodations, and
acquisition through purchase or rental of real property including, but not limited to, housing, and
to eliminate segregation or separation based on race, religion, color, sex, disability, national
originzer ancestry, sexual orientation or gender identity, and familial status in housing, since
such segregation is an impediment to equal opportunity. Equal education and employment
opportunities and equal access to and use of public accommodations and equal opportunity for
acquisition of real property including but not limited to housing are hereby declared to be civil
rights.
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(b) The practice of denying these rights to properly qualified persons by reason of race,
religion, color, sex, disability, national origin�er ancestry, sexual orientation or gender identity,
or familial status in the case of housing of such person is contrary to the principles of freedom
and equal opportunity, and is contradictory to the objectives of the public policy of this City and
shall be considered discriminatory practices. The promotion of equal opportunity without regard
to race, religion, color, sex, disability, national origin�ef ancestry, sexual orientation or engder
identily, or familial status in the case of housing, through reasonable methods is the purpose of
this Article.
(c) It is also the public policy of this City to protect employers, labor organizations,
employment agencies, property owners, real estate brokers, builders, builders and lending
institutions from unfounded charges of discrimination.
SECTION II. Chapter 2, Article 9, Section 2 -127.1 of the South Bend Municipal Code
shall be, and hereby is amended to read as follows:
Sec. 2- 127.1. Prohibited Conduct.
(a) No person shall discriminate against any other person in education, employment, access to
public conveniences and accommodations based on race, color, sex, disability, national origin,
ancestry, sexual orientation or gender identity. Nor shall any person deny any other person equal
opportunity for education, employment, access to public conveniences and accommodations
based on race, religion, color, sex, disability, national origin, ancestry, sexual orientation or
gender identity. Such discrimination or denial of equal opportunity shall be an unlawful practice.
(b) No person shall refuse to sell or to rent after the making of a bona fide offer; refuse to
negotiate for the sale or rental or otherwise make unavailable or deny a dwelling; or otherwise
discriminate against any person in the terms, conditions, privileges of sale or rental of a dwelling,
or in providing services or facilities in connection with the sale or rental of a dwelling because of
a person's race, color, religion, sex, familial status, disability, of national origin, sexual
orientation or gender identity. Conduct in violation of this section shall be an unlawful practice.
(c) No person may coerce, intimidate, threaten or interfere with any other person:
(1) In the exercise or enjoyment of any right granted or protected by this chapter; or
(2) Because the person has exercised or enjoyed, or has aided or encouraged another
person in the exercise or enjoyment of, any right granted or protected by this chapter. [P.L. 66-
1990, § 2.]
(d) No person shall commit any other discriminatory practices as defined in any other section of
this Article.
(e) Protections in this Article against discriminatory practices with regard to sexual orientation
or gender identity shall not apply to decisions of an em foyer which is a religious society or
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order, association, organization, institution or related entity when such protections affect the
definition, advancement of the mission(s), practice(s) or beliefs) of such religious society or
order, association, organization, institution or related entity charged with the implementation of
such decision or decisions, and no requirement of this article shall compel any person to act in a
manner contrary to that which has been granted specific protection by the United States Supreme
Court in Boy Scouts ofAmerica and Monmouth Council, et al. v. Dale. 530 U.S. 640 (2000).
(f) The protections in this Article against discriminatory practices regarding sexual orientation
or gender identity in employment shall not be construed to require that health care plans
insurance, pension, or similar additional benefits provided by employers and benefiting the
spouses of employees be extended to non - married domestic partners of any employee.
(e) (g) This Article shall be construed broadly to effectuate its purpose.
SECTION III. Chapter 2, Article 9, Section 2 -128, (Definitions) subsections (i), (q),
(w) and (x) of the South Bend Municipal Code hereby shall be, and hereby is amended to read
as follows:
(i) The term "discriminatory practice" shall mean the exclusion of a person by another person
from equal opportunity or a system which excludes persons from equal opportunity in
employment, education, public conveniences and accommodations because of race, religion,
color, sex, disability, national origin, of ancestry, sexual orientation or gender identity. A
discriminatory practice also means the refusal to sell or rent after the making of a bona fide offer;
the refusal to negotiate for the sale or rental or otherwise making unavailable or denying, or
otherwise discriminating against any person in the terms, conditions, privileges of sale or rental
of a dwelling, or in providing services or facilities in connection with the sale or rental of a
dwelling because of a person's race, color, religion, sex, familial status, disability, of national
origin, sexual orientation or gender identity.
A "discriminatory practice" shall also include the following:
1. Advertising for the sale or rental of a dwelling in a manner that indicates any
preference, limitation, or discrimination because of race, color, religion, sex, disability,
familial status, of national- origin, sexual orientation or gender identity;
2. Falsely representing that a dwelling is not available for inspection, sale, or rental
based on race, color, religion, sex, disability, familial status, of national origin, sexual
orientation or gender identity;
3. Coercion, intimidation, threats, or interference with any person in the exercise or
enjoyment of, or on account of his or her having exercised or enjoyed, or on account of
his or her having aided or encouraged any other person in the exercise of enjoyment of
any right granted or protected by sections 2- 128.1, 2- 128.2, 2- 128.3, 2 -128.4 or 2 -128.5
of this chapter;
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4. Blockbusting based on representations regarding the entry or prospective entry into
the neighborhood of a person or persons of a particular race, color, religion, sex,
disability, familial status, of national origin, sexual orientation or gender identity;
5. Discrimination because of race, color, religion, sex, disability, national origin, sexual
orientation or gender identity, or familial status by persons or entities whose business
includes engaging in residential real estate transactions in the making of a loan or the
granting of financial assistance for residential real estate, in the selling, brokering or
appraisal of residential real estate, or by the denial of access to or participation in a
multiple - listing service or other real estate broker organization or services.
Every discriminatory practice relating to the acquisition or sale of real property, education,
public accommodations or employment shall be considered unlawful unless it is specifically
exempted by this Article.
(q) "Disabled" or "disability" means, with respect to a person:
(1) A physical or mental impairment that substantially limits one (1) or more of the
person's major life activities;
(2) A record of having an impairment described in subdivision (1); or
(3) Being regarded as having an impairment described in subdivision (1).
The term does not include current illegal use of or addiction to a controlled substance (as defined
in Section 102 of the Controlled Substances Act (21 U.S.C. § 802). The te...,, does not ;,,elude
individual solely be. cruse the individual ual ; ., transvestite.
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(3) In the process of obtaining legal custody of an individual younger than eighteen
(18) years of age.
(w) "Gender identity" means an individual having or being perceived as having _a ender -
related self - identity, self-image, appearance, expression or behavior different from those
characteristics traditionally associated with the individual's assigned sex at birth.
(x) "Sexual orientation" means an individual's actual or perceived identity or practice as a
lesbian woman, gay man, bisexual person or heterosexual person.
SECTION IV. Chapter 2, Article 9, Section 2 -128.1 of the South Bend Municipal Code by
shall be, and hereby is amended to read as follows:
Sec. 2- 128.1. Prohibited Notices, Statements, Advertisements, or Representations in
Housing.
(a) A person may not make, print, or publish or cause to be made, printed, or published any
notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates
any preference, limitation, or discrimination based on race, color, religion, sex, disability,
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familial status, of national origin, sexual orientation or gender identity or an intention to make
such a preference, limitation, or discrimination.
(b) A person may not represent to any person because of race, color, religion, sex, disability,
familial status, of national origin, sexual orientation or gender identity that a dwelling is not
available for inspection, for sale, or rental when the dwelling is so available.
(c) A person may not, for profit, induce or attempt to induce a person to sell or rent a dwelling
by representations regarding the entry or prospective entry into a neighborhood of a person or
persons of a particular race, color, sex, disability, religion, familial status of national origin,
sexual orientation or izender identity.
SECTION VI. The title only of Section 2- 128.2, Chapter 2, Article 9 of the South Bend
Municipal Code shall be, and hereby is amended to read as follows:
Sec. 2- 128.2. H-andieapped Disability Discrimination in Housing.
SECTION VII. Subsections (f) and (i) of Chapter 2, Article 9, Section 2 -131 of the South Bend
Municipal Code shall be, and hereby are amended to read as follows:
Sec. 2 -131. Powers and Duties of Commission.
The Commission is empowered to and shall do the following:
...................
(f) Issue such publications and such results of investigations and research as in its judgment will
tend to minimize or eliminate discrimination because of race, color, religion, sex, disability,
national origin�er ancestry, sexual orientation or gender identity, or familial status in the case of
housing.
(i) Appoint hearing officers, hold hearings, subpoena witnesses, compel their attendance,
administer oaths, take the testimony of any such person under oath, and require the production
for examination of any books and papers relating to any matter under investigation or in question
before the Commission. The Commission shall have the exclusive power to subpoena, but it shall
consult with the Department of Law concerning the issuance of a subpoena. The Department of
Law may veto the issuance of a subpoena if and only if such an issuance would be an abuse of
the Commission's subpoena power. Abuse of the Commission's subpoena power shall include but
not be limited to use of such subpoena power for harassment purposes, issuance of a subpoena
for information clearly irrelevant to the investigation being conducted, and issuance of a
subpoena for information over an excessively broad span of time. Contumacy or refusal to obey
a subpoena issued pursuant to this section shall constitute a contempt. All hearings shall be held
within the City of South Bend at a location determined by the Commission. A citation of
contempt may be issued upon application by the Commission to the circuit or superior court, or
judge thereof, in the County in which the hearing is held or in which the witness resides or
transacts business.
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(1) The Commission shall state its finding of fact after a hearing, and, if the
Commission finds a person has engaged in an unlawful discriminatory practice, it may
cause to be served on such person an order requiring such person to cease and desist from
the unlawful discriminatory practice and requiring such person to take further affirmative
action as will effectuate the purposes of this article, including but not limited to the power
to restore charging party's losses incurred as a result of discriminatory treatment, as the
Commission may deem necessary to assure justice. The Commission may require the
posting of notice setting forth the public policy of Indiana concerning civil rights and the
respondent's compliance with said policy in places of public accommodations; and it may
require proof of compliance to be filed by the respondent at periodic intervals.
(A) Except in housing cases which are separately treated in sub -part (C) of this
section, the Commission may impose a penalty upon any respondent of one
thousand five hundred dollars ($1,500.00) for the first and second violation of this
article within a five -year period, and may further impose a penalty of two
thousand five hundred dollars ($2,500.00) for three (3) or more violations of this
article within a five -year period.
(B) When applied to discrimination in employment, the Commission shall also
have power, to the extent consistent with state law , to restore charging party's
losses by awarding damages including wages, salary, commissions, fringe
benefits in an amount not to exceed that lost over a two -year period. For
discrimination in employment and housing, the Commission shall also have the
power, to the extent consistent with state law, to award damages which will
compensate charging party for future pecuniary loss, emotional pain, suffering,
inconvenience, anguish, loss of enjoyment of life and other non - pecuniary losses,
costs and attorney fees.
(C) To vindicate the public interest in cases of housing discrimination, the
Commission may assess a civil penalty of two thousand five hundred dollars
($2,500.00) for each commission of a discriminatory housing practice.
(D) The Commission may sue to recover a civil penalty due under this section.
[P.L. 66- 1990, § 2.]
(2) Judicial review of any decision of the Commission as referred to in this article may
be obtained under IC 4- 21.5 -1 in the same manner as if the decision was that of a State
agency. However, only in those cases involving discriminatory housing practices as
prohibited by this Chapter, a complainant, a respondent, or an aggrieved person on whose
behalf the complaint was filed may elect to have decided in a civil action those claims
asserted in a finding of probable cause. Such election must be made not later than twenty
(20) days after the date of receipt by the electing person of service under this chapter, and
such person shall give written notice to the Commission and all other complainants and
respondents to whom the fmding of probable cause relates. Such civil action shall be filed
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in the circuit or superior court of St. Joseph County or any other court of proper
jurisdiction, and if the court finds that a discriminatory housing practice has occurred or
is about to occur, the court may grant any relief appropriate in a civil action under this
Article or IC 22- 9.5 -8.1 -2 or as authorized by the Civil Rights Act of 1991, or the federal
Fair Housing Act.
(3) In those cases involving discriminatory housing practices as prohibited by this Act
where final adjudicative Commission action is in favor of the charging parry, the
charging party shall be permitted to have damages determined in the circuit of superior
court of St. Joseph County or any other court of proper jurisdiction having the power to
award punitive damages as allowed by the Fair Housing Act. Charging parties shall make
such a request to the Commission in writing within five (5) days from the notice of final
Commission action, which notice shall advise charging party of this right to damage
determination, and the Commission shall represent charging party at the Commission's
expense in such court action for damages. The Commission shall seek such a judicial
determination of damages within one (1) year of the alleged discriminatory housing
practice. If it is impracticable for the Commission to seek such a determination within
one (1) year of the alleged discriminatory act, it shall notify charging party and
respondent in writing of its reasons for not doing so, and shall undertake such judicial
determination as soon as practicable.
SECTION VIII. Severability. If any part, section, subsection, sentence, clause or
phrase of this Ordinance is for any reason declared to be unconstitutional or otherwise invalid,
such decision shall not affect the validity of the remaining portions of this Ordinance.
SECTION IX. Any part, section, subsection, sentence, clause or phrase of Chapter 2,
Article 9 of the South Bend Municipal Code (known as the Human Rights Ordinance ) not
amended by this Ordinance shall remain in full force and effect, and shall be interpreted
consistent with this Ordinance.
SECTION X. This ordinance shall be in full force and effect from and after is passage by
the Common Council, approval by the Mayor and legal publication.
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Attest:
(John oorde, City Clerk
Member, South Bend Common Council
v�� , ,� S � —
Member, South Bend Common Council
*Editor's Note: Underlined words are proposed new amendments and e -asse we-r- ,, are
proposed deletions.
Presented by me to Pete Buttigieg, the Mayor of the City of South Bend, Indiana, on the
day of , 2012, at [ ( ', L(- o'clock. m.
Deputy Cl •k
Approved and signed by me on the 7-7 � day of rYkArc , 2012, at `f 'ZJ
o'clock �-.m.
,/� ,W
Pete Buttigieg
Mayor, City of South Bend, Indiana
0
1 st READING �-
PUBLIC HEARING
3 rd READING - _ 2..
I'OT APPROVED
REFERRED
PASSED ,y^:-�
d In Clerk,
MAR -:6 20 :.
soum
TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND:
Your Committee of the Whole, to whom was referred:
BILL NO.
09 -12 A BILL OF THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, AMENDING VARIOUS
SECTIONS OF ARTICLE 9, OF CHAPTER 2 OF THE
SOUTH BEND MUNICIPAL CODE BY THE INCLUSION OF
NEW PROVISIONS ADDRESSING GENDER IDENTITY
AND SEXUAL ORIENTATION
Respectfully report that they have examined the matter and that in their opinion,
this bill is being recommended to the full Council with a favorable
recommendation.
This bill was heard by the Personal and Finance Committee.
Oliver Davis
Chairperson, Committee of the Whole
Derek D. Dieter
President
City of South Bend
Common Council
441 County -City Building . 227 W. Jefferson Blvd (574) 235 -9321
South Bend, Indiana 46601 -1830 Fax (574) 235 -9173
http://www.southbendin.gov
March 7, 2012
Oliver J. Davis
Vice - President Members of the South Bend Common Council
4th Floor County City Building
Karen L. White
Chairperson, Committee South Bend, IN 46601
of the Whole
Re: Proposed Amendments to the South Bend Human Rights Ordinance
Tim Scott Addressing Sexual Orientation and Gender Identity in the City of South
First District Bend
Henry Davis, Jr. Dear Council Members:
Second District
Valerie Schey We are pleased to introduce for your consideration the attached 8 -page amended
Third District ordinance. This amended ordinance would replace the South Bend Human
Rights Ordinance currently set forth in Chapter 2, Article 9, Sections 1 -126
Fred Ferlic through 2 -132.1 of the South Bend Municipal Code.
Fourth District
The issue of discrimination on the basis of sexual orientation and gender identity
David Varner has been a focus of public concern and debate in South Bend since January,
Fifth District 2005, when the Human Rights Commission sent the following statement to the
Oliver J. Davis Common Council:
Sixth District
"The South Bend Human Rights Commission is an agency of the City of
Derek D. Dieter South Bend, Indiana, committed to fair and equal treatment of all human
At Large beings. It is the responsibility and during of the Human Rights
Commission to make sure that no human being is mistreated based on
Gavin Ferlic status, without making value or moral judgments.
At Large
Gays, lesbians, bisexuals, and transgendered (GLB &T) persons have
Karen L. White experienced mistreatment based on their GLB &T status. The South Bend
At Large Human Rights Commission supports pports and encourages the South Bend
Common Council to hear from the general public; to explore, investigate
and to determine the degree to which GLB &T persons have been treated
adversely within the City of South Bend due to their GLB &T status. The
South Bend Human Rights Commission further encourages the South
Bend Common Council, working cooperatively with the South Bend
Human Rights Commission, to create an appropriate remedy."
Yet, despite evidence that such discrimination was occurring, an attempt to
amend the Human Rights Ordinance in 2006 failed.
Human Rights Ordinance Cover Letter — page 2
March 7, 2012
In 2009, former Mayor Stephen Luecke issued an Executive Order to ban discrimination based
upon sexual orientation in city hiring. The Common Council went on to defeat a proposed
amendment to ban employment discrimination based upon sexual orientation city -wide in 2010.
It is now 2012, and members of the Human Rights Commission continue to state that they
receive reports alleging discrimination on the basis of sexual orientation; however, the
Commission has been unable to investigate these reports because they are not empowered to do
SO.
The Common Council can take action to allow the Human Rights Commission to address this
discrimination, and it is the opinion of the sponsors of this amendment that the council should
do so. Not only will this promote the fair treatment and equality that South Bend wishes to
extend to all citizens, but it will also promote the type of climate that is essential in attracting
innovative businesses to our community.
We believe it is a matter of basic fairness to amend our city's Human Rights Ordinance to
prohibit discrimination on the basis of sexual orientation and gender identity. Doing so will
enable the Human Rights Commission to investigate allegations, determine if there is evidence
of discrimination, mediate, and try to resolve the issue. Our Human Rights Commission is
experienced at this process - we need only give them the power to investigate cases of sexual
orientation or gender identity discrimination for them to do so.
This issue has been the topic of extensive debate. The proposed legislation has been vetted. We
believe the time has come for South Bend to join other progressive cities in Indiana and
nationwide in protecting our GLBT citizens from discrimination.
Sincerely,
Gl� `�D ivaq
Valerie Schey
3rd District Council Member
Tim Scott
1St District Council Member
Attachments
Dr. Fred Ferlic
4th District Council Member
Gavin Ferlic
Council Member at Large