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RESOLUTION R-1516-65: A RESOLUTION OF THE COUNCIL OF THE CITY OF NORMAN ACKNOWLEDGING RECENT DEVELOPMENTS IN FEDERAL LAW INTERPRETING TITLE VII SEX DISCRIMINATION PROTECTION PROHIBITING SEX BASED CONSIDERATIONS IN EMPLOYMENT AND IN CHAPTER 7 OF THE CITY OF NORMAN CODE OF ORDINANCES TO INCLUDE GUARDING AGAINST CONSIDERATION OF SUCH ASSUMPTIONS OR STEREOTYPES STEMMING FROM SEXUAL ORIENTATION OR GENDER IDENTITY AND SETTING FORTH THE POLICY OF THE CITY OF NORMAN THAT THE REASONING PROVIDED THEREIN BE INCORPORATED INTO CITY POLICY WHEN ADDRESSING SUCH ISSUES.
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BACKGROUND: At the October 26, 2015, meeting of the City of Norman Human Rights Commission (“HRC”), the City Attorney’s Office presented a requested legal update of sex discrimination jurisprudence, specifically regarding cases focused on discrimination claims grounded in disparate treatment due to sexual orientation and gender identity. The HRC voted unanimously to request that the City Attorney’s Office provide the same legal update to City Council and to recommend that Council adopt a resolution providing policy clarification regarding the administration of City policies and ordinances as well as the interpretation and enforcement of Chapter 7 of the City’s Code of Ordinances in accordance with the information provided.
At the December 8, 2015, City Council Conference, the City Attorney presented the requested legal update and a draft resolution to Council. Council requested that the draft resolution be placed on the December 22, 2015, Agenda.
DISCUSSION: Several recent developments in federal law have provided protection against discrimination grounded in assumptions and stereotypes associated with an individual’s sexual orientation and/or gender identity, particularly in the areas of employment and housing. Presidential executive orders specifically protect both federal civilian employees and employees of federal contractors from discrimination on the basis of sexual orientation and gender identity. The United States Department of Housing and Urban Development (“HUD”) has adopted an Equal Access Rule to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status. This rule requires that eligibility for HUD-assisted or -insured housing is made without regard to actual or perceived sexual orientation, gender identity, or marital status. The Equal Employment Opportunity Commission (“EEOC”), the federal administrative agency charged with enforcing Title VII of the Civil Rights Act of 1964 (“Title VII”) and other anti-discrimination laws in employment, has ruled that both sexual orientation discrimination and gender identity discrimination constitute impermissible sex discrimination under Title VII.
The United States Supreme Court (“SCOTUS”) has ruled that both adverse employment actions made on the basis of sex or gender stereotypes and same-sex harassment constitute impermissible sex discrimination under Title VII. Earlier this year SCOTUS extended federal protection under the 14th Amendment to the U.S. Constitution to include the fundamental right of all citizens to have equal access to marriage regardless of sexual orientation. Some federal courts in other jurisdictions have specifically found that discrimination based on sexual orientation or gender identity constitutes impermissible sex discrimination under Title VII. The Tenth Circuit of Appeals, which has federal appellate jurisdiction over claims brought in Oklahoma, has recognized that transsexuals, although not a separate protected class, like all employees, could assert a Title VII sex discrimination claim if they are discriminated against because they are male or because they are female. Although the Tenth Circuit Court of Appeals has not recognized sexual orientation and gender identity as separate protected classes under Title VII, the legal reasoning in these cases, like the SCOTUS decisions, focuses on discrimination resulting from the impermissible use of assumptions or stereotypes associated with sex.
The HRC requested a Resolution recognizing these developments in federal law and reflecting their application to the administration of City policy and Ordinance interpretation. This Resolution acknowledges the stated equal opportunity policy in the City of Norman Civil Rights Ordinance and the City’s adoption of Resolution R-0809-12 in 2008 joining the National League of Cities Partnership for Working toward Inclusive Communities and affirming “inclusion” as a fundamental aspect of the community. This Resolution is a policy statement directing the City Manager to administer City personnel policies and Chapter 7 of the City’s Code of Ordinances, wherein sex discrimination is prohibited, to guard against the use of assumptions or stereotypes associated with sexual orientation and gender identity.
RECOMMENDATION: The Resolution, as requested by the HRC and as indicated by the Council at its December 8, 2015 Conference, in order to acknowledge the recent federal developments discussed above and to provide policy guidance to the City Manager regarding the administration of City personnel policy and Chapter 7 of the City’s Code of Ordinances is presented to City Council for consideration. Under the Federal law reviewed, the Resolution is consistent with the legal reasoning contained therein, that decisions and action be made using appropriate criteria guarding against illegal discrimination that is based on assumptions or stereotypes associated with sex which is prohibited under Title VII of the United State Code.