HomeMy WebLinkAboutResolution 086-15RECORD OF RESOLUTIONS
Dayton Legal Blank, Inc., Fonn No. 30045
Resolution No. 86-15 Passed , 20
A RESOLUTION REJECTING DISCRIMINATION OF ANY KIND,
AND URGING THE OHIO GENERAL ASSEMBLY TO CONSIDER
LEGISLATION TO ENSURE EQUAL OPPORTUINITY AND
RESPECT FOR ALL PERSONS.
WHEREAS, the City of Dublin is a diverse community of families and individuals; and
WHEREAS, appreciation for diversity in all forms strengthens a community, fosters a
welcoming environment, and is a critical component of a thriving, successful city; and
WHEREAS, the laws of the State of Ohio do not currently provide express
protections based on sexual orientation or gender identity and expressions.
NOW, WHEREFORE, BE IT RESOLVED by the Council of the City of Dublin, of
its elected members concurring, that:
Section 1. The City of Dublin rejects discrimination of any kind and respects the
inherent worth of all people without regard to race, color, national origin, religion,
sex, genetic information, pregnancy, age, ancestry, military status, sexual orientation,
gender identity, disability marital status, veteran's status, or other protected factor.
Section 2. The City encourages the Ohio General Assembly to consider legislation
to ensure the equal protection of all Ohio citizens, regardless of race, color, national
origin, religion, sex, genetic information, pregnancy, age, ancestry, military status,
sexual orientation, gender identity, disability, marital status, veteran's status, or other
protected factor.
Section 3. The City encourages all other Central Ohio municipalities to support
this Resolution and pass similar legislation.
Section 4. This Resolution shall take effect upon adoption in accordance with
Section 4.04(a) of the Revised Charter.
Passed this.,] day of .1�E'_.L e-���l� .
ayor - Presiding Officer
ATTEST:
1
Clerk of Council
ros
V wvTodd
ATTORNEYS
MEMORANDUM
To: Dublin City Council
Dana McDaniel, City Manager
From: Stephen Smith, Law Director
Jennifer Readler, Assistant Law Director
Laura Leister
Date: December 3, 2015
Re: Options for Formal Protection of Employment - Related Sexual Orientation
Discrimination
Resolution 86 -15 - A Resolution Rejecting Discrimination Of Any Kind,
And Urging The Ohio General Assembly To Consider Legislation To Ensure
Equal Opportunity And Respect For All Persons.
L Background and Question Presented
Given the recent developments involving municipalities adopting regulations explicitly
prohibiting discrimination based on sexual orientation, in combination with evolving case law and
progressive Equal Opportunity Commission (EEOC) decisions, we have been asked to prepare a
memorandum discussing the current local, state and federal laws relating to LGBT protection, and
provide recommendations.
I1. Federal Law
There is a broad umbrella of federal laws which protect people from workplace
discrimination on the basis of race, national origin, sex, age, and disability. There is, however, no
federal law that explicitly prohibits sexual orientation discrimination in private employment. While
Title VII prohibits discrimination based on sex, federal courts have consistently held that the term
"sea'' does not include sexual orientation. See e.g., Vickers v. Fairfield Medical Center, 453 F.3d
757, 766 (6th Cir. 2006) ( "It is beyond debate that Title VII does not prohibit workplace
discrimination or harassment based on sexual preference, sexual orientation, or homosexuality. "). See
also Obergefell v. Hodges, 576 U.S. , (2015) (declared same -sex marriage a fundamental right,
but did not elevate "sexual orientation" into a protected class).
Notwithstanding the above, the Sixth Circuit does recognize employment discrimination
based on sex stereotypes (i.e., discriminating against a female because she does not dress femininely
or discriminating against a male because he does not talk in a "masculine" way). In Smith v. City of
Salem, 378 F.3d 566 (6th Cir. 2004) and Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005),
the Court held that Title VII prohibits employers from discriminating against employees who exhibit
gender- nonconforming behavior. However, it has been held that an employer is permitted to require
employees to comply with the accepted principles established for gender- distinct public restrooms.
1
Compare to Johnson v. Fresh Mark, Inc., 337 F.Supp.2d 996, 1000 (N.D.Ohio 2003) affd, 98
Fed.Appx. 461 (6th Cir.2004), (gender- distinct public restrooms is not discrimination based on sex
stereotypes).
III. Ohio Law
"Under Ohio law, an employer may not discharge without just cause, refuse to hire or otherwise
discriminate against an individual with respect to hire, tenure, terms, conditions or privileges of
employment `because of the race, color, religion, sex, military status, national origin, disability, age
or ancestry' of that person." Burns v. Ohio State Univ. College of Veterinary Med., 10th Dist., 2014 -
Ohio -1190, ¶ 6 (quoting R.C. § 4112.02(A)). These are the only protected classes acknowledged in
Ohio and, similar to the federal government, Ohio courts have consistently held that the term "sex"
does not include sexual orientation. See id. at ¶¶ 6 -11; Inskeep v. W. Res. Transit Auth., 7th Dist.,
2013 - Ohio -897, ¶11 ( "[s]everal states have chosen to enact legislation prohibiting discrimination
against homosexuals by adding sexual orientation as a protected status in their discrimination
statutes. Because Ohio has not, it has been concluded that sexual orientation is not protected. ").
Governor Kasich signed an executive order in January 2011 prohibiting discrimination based on
sexual orientation of state employees. Also, since the early 1990s, some Ohio municipalities and
counties have enacted ordinances prohibiting sexual orientation discrimination.
IV. Resolution Urging the General Assembly to Take Action
Grandview Heights passed a resolution explicitly "rejecting discrimination of any kind and
urging the Ohio General Assembly to consider legislation to ensure equal opportunity and respect for
all persons." The resolution also "encourages all other Central Ohio municipalities to support this
Resolution, pass a similar resolution or legislation."
We would recommend that Dublin pass a similar resolution. This is recommended because it
provides an official statement of Dublin's rejection of discrimination within its boundaries and
advocates that the state government use its resources and expertise to craft uniform legislation. With
247 cities in Ohio, it is simply not practical for each city to have its own unique anti - discrimination
ordinance with different exceptions, definitions, and protections. Additionally, the task of enforcing a
fully comprehensive anti - discrimination ordinance against private employers, landlords, real estate
agents, and owners of public accommodations would be an immensely burdensome and costly
operation.
V. Other Courses of Action
We also recommend that the City take the following actions:
• Amend the current non - discrimination provision in Dublin's standard public contract to
require independent contractors to have inclusive equal opportunity policies
encompassing "sexual orientation" and "gender identity
Staff recommends that this contract revision be implemented in conjunction with the passage
of a resolution rejecting discrimination as described above. This approach provides concrete support
for Dublin's position of intolerance for discrimination and would be as simple as inserting the words
2
"sexual orientation" and "gender identity" (or "sexual expression and identity ") within the current
standard contract provision as follows:
"No discrimination for reason of race, color, national origin, religion, sex, genetic
information, pregnancy, age, ancestry, military status, sexual orientation, gender
identity, or disability shall be permitted or authorized by Dublin and/or Service
Provider in connection with the Services."
• Amend the Code to include a clause prohibiting discrimination based on sexual
orientation and gender identitv in Citv emplovment. This ordinance would protect citv
emplovees from discriminatory hiring, firing, and retention because of sexual orientation
and/or gender identity.
Staff recommends this amendment, which should be implemented in conjunction with the
standard public contract amendment and the passage of a resolution rejecting discrimination.
Implementing this approach would further solidify Dublin's intolerance of discrimination by
explicitly prohibiting it within its own employment practices. Under § 33.07, amendments to Chapter
33 do not require separate legislation, but rather simply require that the Human Resources Director
and City Manager report such amendments to City Council. City Council then has 30 days to amend
or disapprove the amendments.
Dublin's current Affirmative Action Policy, provided for in § 33.09(B)(1) of the Code,
"prohibits discrimination because of race, color, national origin, religion, sex or handicap in all
aspects of its personnel policies, working conditions and relationship with employees and applicants
for employment, as well as to provide equal access to all programs in order to promote a continuing
affirmative action program by the municipality." It is recommended that Dublin amend this provision
to include "sexual orientation" and "gender identity." Once amended, individuals who believe they
have been discriminated against in City employment may file a grievance as provided for in
§33.09(B) and (C).
Attached is a redline of the proposed amendments to § 33.09. Staff requests feedback from
Council if any revisions are desired.
Implementing this option would additionally require that all Administrative Orders of the
City Manager relating to Dublin's Discrimination Policy or Affirmative Action Policy be revised to
include "sexual orientation" and "gender identity ". Such Administrative Orders would include AO
2.66 and AO 2.12.
Vl. Conclusion
In conclusion, Staff recommends that Council approve Resolution 86 -15 at the public hearing
on December 7, 2015. Staff also requests feedback as to the proposed amendments to the standard
contract language and the City's affirmative action policy.
REDLINED VERSION
§ 33.09 AFFIRMATIVE ACTION POLICY.
(A) Nondiscrimination. In compliance with Title VII of the Civil Rights Act of 1964 as amended
by the Equal Employment Act of 1972, as well as Section 504 of the 1973 Rehabilitation Act,
amended in 1976 by Title 3, the Age Discrimination in Employment Act, and the Genetic
Information Nondiscrimination Act, Tit is the policy of the municipality:
(1) To provide equality of opportunity in employment with the municipality for all persons.
(2) To carry out all programs and activities in such manner that no person shall, on the grounds
of race, color, national origin, religion, sex, genetic information, pregnancy. age, ancestry, military
status, sexual orientation, gender identity, marital status, veteran's status, or 4aH4ieffpdisability , be
excluded from participation in, be denied the benefits of or be subjected to discrimination with
respect to such programs or activities.
(B) Employment, personnel and program practices.
(1) The municipality prohibits discrimination because of race, color, national origin, religion,
sex, genetic information, pregnancy, age, ancestry, military status, sexual orientation, gender
identity, marital status.- veteran's status, or 4aff&e*p disability, in all aspects of its personnel
policies, working conditions and relationship with employees and applicants for employment, as
well as to provide equal access to all programs in order to promote a continuing affirmative action
program by the municipality.
(2) The municipality shall put forth every effort to see that contractors and subcontractors
who perform work for the municipality shall comply with all fedef 1, state and equal ....ple melt
.poft-Hni4. polo .ies lien ,.ppli a4l .this policy.
(3) The l4ayer-Ci1y Manager shall designate an Equal Employment Opportunity (EEO) officer
who will coordinate the municipal equal employment opportunity efforts. It shall be the duty of
the EEO officer to provide advice, conduct initial investigations and to seek conciliation of
employee discriminatory complaints.
(C) Grievance hearing committee. The following procedure is established for the grievant:
(1) The grievant shall, within five days within the action, submit such complaint in writing to
the EEO officer.
(2) The grievant shall request a hearing through the EEO officer, and shall select the first
member of the hearing committee.
(3) The municipality shall select the second member.
(4) These two members shall select the third member who becomes the chairperson.
(5) The hearing committee will weigh the evidence presented before it; prepare finding of
facts, conclusions of law, and a decision, including appropriate corrective action, if any, to
effectuate the municipality's policy established by the affirmative action program.
(6) The decision of the hearing committee shall be final.
(D) Program implementation.
(1) The #Iayer-City Manager shall direct the implementation of the affirmative action program
to promote equal opportunity in every aspect of employment policy and practice, including but not
REDLINED VERSION
limited to: employment, upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rates of pay or other forms of compensation, and selection for training,
including workshops, seminars and schooling. This implementation shall include, but not be
limited to the following:
(a) A notice of the municipality's policy on nondiscrimination in employment shall be posted
on bulletin boards in all municipal buildings so as to come to the attention of all employees.
(b) Notification of employment opportunities, new positions, vacancies, promotion
possibilities and training opportunities shall be posted on bulletin boards in all municipal buildings
so as to come to the attention of all employees.
(c) Newspaper advertisements and other public announcements of employment opportunities
placed by or on behalf of the municipality shall state that the municipality is an equal opportunity
employer.
(d) The name of the Equal Opportunity Employment officer shall be posted on bulletin
boards in all municipal buildings.
(e) Place employment advertisements in appropriate newspapers.
(f) Systematic contacts will be made with minority and human relations organizations to
encourage referral of qualified minority applicants to the municipality, and maintain records of
such responses.
(g) The municipality shall make every effort to promote after- school, summer and vacation
employment to minorities.
(h) The municipality shall continually inventory and evaluate all minority personnel for
promotion opportunities and encourage minority employees to seek such opportunities.
(i) The municipality shall insure that seniority practices, job classification, and the like, do
not have a discriminatory effect.
0) The municipality shall develop and maintain records as related to aspects of this
affirmative action program such as recruitment, employment, hiring, promotions, and the like.
0127206.0607929 4814 - 4411- 6523v2
REDLINED VERSION
CITY OF DUBLIN
ADMINISTRATIVE ORDERS
OF THE CITY MANAGER
I. PURPOSE
The purpose of this Administrative Order is:
A. To provide a ratio of employment that is representative of the community;
B. To establish the Division's Affirmative Action Plan;
C. To establish the Division's Equal Employment Opportunity Plan,
II. EMPLOYEE MINORITY RATIO
See Section III. (Affirmative Action Plan) immediately following.
III. AFFIRMATIVE ACTION PLAN
A. This Policy establishes an Affirmative Action Compliance Program, composed
of specific steps that will be under -taken to implement the plan.
B. The Police Division shall engage in positive efforts to employ ethnic minority
group members and women by taking affirmative action to achieve a ratio of
minority group employees in approximate proportion to the composition of the
service area.
C. In seeking to employ qualified ethnic minority members and women, the
Division may conduct research, develop, and implement specialized minority
and female recruitment methods. These methods may include, but not
necessarily be limited to:
ADMINISTRATIVE ORDER 2.12
TO:
Director of Human Resources and Chief of Police
FROM:
Timotk_ n 14an l ._,Dana L. McDaniel, City Manager
SUBJECT:
Personnel
Affirmative Action & EEO Plan for the Recruitment of Law Enforcement
DATE:
Supersedes
Subject
and Replaces Administrative Order 2.12 a°'°.,. d-° 742-- Regarding Same
I. PURPOSE
The purpose of this Administrative Order is:
A. To provide a ratio of employment that is representative of the community;
B. To establish the Division's Affirmative Action Plan;
C. To establish the Division's Equal Employment Opportunity Plan,
II. EMPLOYEE MINORITY RATIO
See Section III. (Affirmative Action Plan) immediately following.
III. AFFIRMATIVE ACTION PLAN
A. This Policy establishes an Affirmative Action Compliance Program, composed
of specific steps that will be under -taken to implement the plan.
B. The Police Division shall engage in positive efforts to employ ethnic minority
group members and women by taking affirmative action to achieve a ratio of
minority group employees in approximate proportion to the composition of the
service area.
C. In seeking to employ qualified ethnic minority members and women, the
Division may conduct research, develop, and implement specialized minority
and female recruitment methods. These methods may include, but not
necessarily be limited to:
Administrative Order 2.12
Page 2 of 3
1. Application form and related pre - employment inquiry forms that are in
compliance with applicable federal, state, and local EEO laws.;
2. Job descriptions that are reviewed periodically to properly identify job
related, job requirements;
3. Liaison with local minority community leaders to emphasize police
sincerity and encourage referrals of minority candidates to the police
agency;
4. Active cooperation and utilization of the minority media, as well as the
general media, in minority recruiting efforts;
5. Regular, personal contact with the minority or female candidate from initial
application to final determination of employment;
6. Increased overall recruitment efforts with special attention to inner -city
neighborhoods and college campuses;
7. Periodic review of the entire selection process to ensure it is non-
discriminatory; (No standards are used which have the effect of eliminating
from consideration a significantly higher percentage of minorities or
women that of non - minorities or men.)
8. The encouragement of minority and women employees to refer friends to
the agency for potential employment;
9. Becoming involved with and providing notification to local minority
organizations, women's organizations, community action groups, and
community service programs, at the time of recruitment; and
10. The encouragement of minority and women employees to participate in
community programs.
D. An evaluation of the Division's Affirmative Action Plan shall be performed
periodically in order to:
1. Measure the plan's effectiveness;
2. Determine the degree to which the objectives and goals have been achieved;
and,
3. Indicate any need for additional action.
E. As needed, when employment openings exist within the Division, the Chief of
Police shall set forth an itemized budget for affirmative action efforts. This
may be included as part of the overall budget for the recruitment and selection
process, and shall be submitted at the time the personnel request is submitted.
Administrative Order 2.12
Page 3 of 3
IV. EOUAL EMPLOYMENT OPPORTUNITY PLAN
A. It is the policy of the Dublin Division of Police not to discriminate against
applicants on the basis of race, color, national origin, religion, sex, eg netic
information, pregnancy, age, ancestry, military status, sexual orientation,
gender identity, disability, marital status, or veteran's status, with respect to
recruitment, hiring, training, promotion, or other terms and conditions of
employment. Further, it is the policy of the Division to comply voluntarily with
the concepts and practices contained in affirmative action.
1. Accordingly, all employment decisions shall be consistent with the
principal of Equal Employment Opportunity (EEO).
2. All promotion decisions shall be consistent with the principal of EEO, and
only valid qualifications will be required for promotions.
All other personnel actions or programs such as compensation, benefits,
transfers, layoffs, re- calls, training, and education will be administered in a
non - discriminatory manner without regard to race, color, national origin,
religion, sex, genetic information, pregnancy, age, ancestry, military status .
sexual orientation, gender identity, disability, marital status, or veteran's
status.
B. This policy includes, without limitations, the following commitments:
1. To provide equal employment opportunity to all persons in all recruitment,
selection, training, compensation, and promotional practices without regard
to race, color, national origin, religion, sex, genetic information, pregnancy,
age, ancestry, military status, sexual orientation, gender identity, disability,
marital status, or veteran's status.
2. To identify and analyze all areas of the employment process to further the
principal of equal employment opportunity; employment decisions in all
areas will be made on the basis of furthering the objective of equal
opportunity employment.
C. This policy is in conjunction with the Affirmative Action Compliance Plan
described in Section III. of this Administrative Order, which specifies steps that
will be taken in order to implement this plan.
0127206.0607929 4838 - 8507- 1659v2