Sexual Orientation and Gender Identity Now Protected Classes in the City of Phoenix
Labor & Employment Law Alert 04/02/13 Marian M. Zapata-Rossa
On February 26, 2013, the Phoenix City Council passed an Ordinance prohibiting discrimination in employment, housing, and public accommodation on the basis of "sexual orientation," "gender identity or expression," and "disability."
Under the Ordinance, "sexual orientation" is defined as "an enduring pattern of emotional, romantic, or sexual attractions to men, women, or both sexes as well as the genders that accompany them and shall include discrimination based upon the identification, perception, or status of an individual's same-sex, opposite-sex, or bisexual orientation." "Gender Identity" is defined as "an individual's self-identification as male, female, or something in between, and shall include the individual's appearance, mannerisms, or other characteristics only insofar as they relate to gender, with or without regard to the individual's designated sex at birth."
The City of Phoenix currently prohibits discrimination in employment, housing, and public accommodation on the basis of race, color, religion, sex, national origin, age, genetic information, or marital status. Protections based on the new categories of "sexual orientation," "gender identity or expression," and "disability," went into effect on March 28, 2013.
The new Ordinance prohibits employers from discriminating against employees or applicants because of their "sexual orientation," "gender identity or expression," and "disability" with respect to the compensation, terms, conditions, or privileges of employment, and in the hiring and firing process.
The Ordinance applies to all employers doing business within the City of Phoenix that have one or more employees for each working day in 20 or more calendar weeks during the current or preceding calendar year. The Ordinance also applies to all City of Phoenix contractors, vendors, and suppliers that have 35 or more employees. Religious organizations are exempted.
Despite the Ordinance, sexual orientation and gender identity or expression are not protected categories under Title VII of the Civil Rights Act or Arizona anti-discrimination laws. Nevertheless, employers operating in the City of Phoenix or that have contracts with the City of Phoenix should refrain from discriminating against employees based on "sexual orientation," "gender identity or expression," and "disability."
City Contractors, Suppliers, and Lessees
The Ordinance has additional requirements for certain employers that are City of Phoenix contractors, suppliers, and lessees employing 35 or more employees. In addition to not discriminating against any individual on the basis of "sexual orientation" or "gender identity or expression," these employers must also include the new protected categories in their Equal Employment Opportunity Policies and contracts with the City.
This requirement does not apply to professional organizations or associations when their articles of incorporation, association, or other governing documents already prohibit discrimination on the basis of "sexual orientation" or "gender identity or expression."
As related to housing, the Ordinance prohibits any person from refusing to sell or rent real property within the City because of the potential buyer or renter's "sexual orientation" or "gender identity or expression." The Ordinance also makes it unlawful for any person engaged in a residential real estate-related transaction or in brokerage services related to housing to discriminate against such protected groups. Persons engaged in the business of furnishing appraisals of real estate property are permitted to take into consideration factors other than the protected characteristics.
With regard to public accommodations in the City of Phoenix, the Ordinance provides that no person can be discriminated against or refused accommodation because of their "sexual orientation," "gender identity or expression," or "disability." As with the restrictions concerning employment discrimination, the public accommodation restrictions do not apply to religious organizations.
Charges alleging violations of the Ordinance may be filed with the City Equal Opportunity Department, which will investigate and try to conciliate meritorious cases. If conciliation fails, the City Attorney is authorized to seek criminal penalties. Given the higher burden of proof for criminal penalties, prosecutions will likely be rare. Regardless, employers, City contractors, and any person engaged in a residential real estate-related transaction or in brokerage services related to housing should refrain from discrimination based upon the categories protected by the new Ordinance.
For more information on the Phoenix Ordinance, please contact Marian Zapata-Rossa at (602) 229-5447 / [email protected] or your Quarles & Brady attorney.