Fairness Ordinance FAQs – May 11, 2012

 

FREQUENTLY ASKED QUESTIONS: FAIRNESS ORDINANCE

Compiled from conversations with the Lincoln City Attorney and documents provided by the City Attorney’s office.

 

What is the definition of sexual orientation?

"Sexual Orientation means the actual or perceived heterosexuality, homosexuality, or bisexuality.” (proposed L.M.C. 11.01.010)

What is the definition of gender identity?

“Gender Identity shall mean the actual or perceived appearance, expression, identity, or behavior of a person as being male or female, whether or not that appearance, expression, identity, or behavior is different from that traditionally associated with the person’s designated sex at birth.” (proposed L.M.C. 11.01.010)

How does this affect use of bathrooms?

The Lincoln City Attorney said that a "man who thinks he is a woman" would be able to use any women's bathroom in the city, which also includes private businesses. Likewise, a “woman who thinks she is a man” would be able to use any men’s bathroom in the city. The religious exemption would prevent this from occurring in religious places (see below).

 

How does this affect the use of locker rooms?

The Lincoln City Attorney said that a "man who thinks he is a woman" would be able to enter the women's locker room at a health club, but he could not disrobe completely or it would be a violation of indecent exposure. He also would be ticketed if he "disturbed the peace" but he could legitimately enter and use the women's locker room. The same applies for women; however, religious places are exempt (see below).

 

What types of employers are covered by this ordinance?

L.M.C. 11.01.010 defines an employer as having four or more employees for each working day for 20 or more calendar weeks in a calendar year but does not include a bona fide private membership club supported by membership fees or dues, other than a labor organization, which is exempt from taxation under Section 501(c) of the Internal Revenue Code of 1954, or a religious organization. This covers only employers in the city limits.

 

Will employers be forced to hire gay and/or transgender people?

No, the ordinance does not require an employer to hire anyone, and it does not include any affirmative action elements. It simply prevents an employer from treating gay or transgender people differently than anyone else.

 

Would employers be required to offer new domestic partner sick leave or health insurance benefits to gay and lesbian employees?

No, although if benefits are voluntarily provided to unmarried partners, those benefits should not be limited to only heterosexual partners or only homosexual partners.

 

Can an employer ask about an applicant’s sexual orientation?

No. Under the ordinance an employer may not make any inquiry regarding sexual orientation in connection with prospective employment.

 

How does a company’s dress code apply to transgender employees?

Employers have a right to establish employee dress and grooming guidelines during work hours if they are reasonable and serve a legitimate business purpose but should allow employees to comply within these provisions consistent with their gender identity.

 

What actions are unlawful with regard to housing under the ordinance?

It shall be unlawful for someone to refuse to sell or rent or negotiate a sale or transmit an offer, discriminate in the terms of a sale or rental, misrepresent that a property is unavailable when it is, advertise in a way to indicate preference or limitation, make a written or oral inquiry on status of an individual, or enact discriminatory covenants based on sexual orientation and gender identity.

 

Is anyone exempt from the ordinance with regard to rental property?

Owner occupied housing providers or landlords who own three (3) or fewer units, religious organizations, and any nonprofit institutional organization acting in conjunction with a religious organization are exempt; however, no one is allowed to discriminate in advertising.

 

What qualifies as a public accommodation?

Places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, and accommodations for the peace, comfort, health, welfare, and safety of the general public, such as hotels or lodging for transient guests; restaurants and facilities selling food for consumption on the premises; gasoline stations; movie theaters, sports arenas, and places of exhibition or entertainment; hospitals; any public facility owned or operated on behalf of the City of Lincoln or facilities supported by public funds. (42 U.S.C. § 2000a; L.M.C.11.01.010)

Does the ordinance provide religious exemptions?

Provisions have been made exempting churches and religious organizations from the new antidiscrimination provisions regarding employment, housing, and public accommodation. The Catholic Church proposed specific exemption language relating to public accommodation and housing, and this language was offered as an amendment to the Fairness Ordinance. Federal law under 42 U.S.C. § 2000e-1(a) and 2000e-2(e)(2) also provides ministerial exemptions to religious corporations and organizations and colleges or educational institutions owned or managed by a particular religion for employment.

 

What is the meaning of a religious organization?

The courts have more often than not found that organizations qualify as a “religious corporation, association, educational institution, or society” based on the totality of circumstances if they are closely affiliated with or owned by a church, significantly funded by a church, have a nonprofit religious corporate status and/or have religious policies that guide their organization.