HomeMy WebLinkAbout2002-10-15 City Council (2)TO:
City of Polo Alto
C ty Manager’s Report
HONORABLE CITY COUNCIL ~)
FROM:CITY MANAGER DEPARTMENT: COMMUNITY SERVICES
DATE:OCTOBER 15, 2002
SUBJECT:CITY OF PALO
ORDINANCE
CMR: 401:02
ALTO ANTI-DISCRIMINATION POLICY
REPORT IN BRIEF
This report transmits the Policy and Services Committee recommendation to the City
Council to direct the City Attorney to draft an~Anti-Discrimination Policy Ordinance and.
directs staff to draft an implementation plan for City Council approval. Funding for this
program will come from current appropriations within the Community Services
Department.
This report discusses the protected groups the ordinance will address, the scope of the
ordinance as it pertains to City functions and activities, enforcement provisions and other
activities contained in the implementation plan.
CMR:40~:02 Page 1 of 4
RECOMMENDATION
The Policy and Services Committee recommends that the City Council 1) direct the City
Attorney to draft an Anti-Discrimination Ordinance and 2) approve the implementation
plan.
BACKGROUND
The Anti-Discrimination Ordinance proposal was developed from a City Council
discussion during the fall of 1998. The Human Relations Commission (HRC) created a
subcommittee to research what other cities were doing regarding anti-discrimination
issues. In comparing other city municipal codes to the City of Palo Alto, the HRC
subcommittee members noted that the City of Palo Alto had little in the Municipal Code
prohibiting discrimination.
An outline of a draft ordinance was prepared and presented to the HRC. In January 1999,
the HRC reviewed and approved the subcommittee’s recommended ordinance policy
statement. A public hearing was held to obtain public comments on the proposed
ordinance outline on May 13, 1999.
As a result of the public hearing, the HRC revised the ordinance policy statement to
incorporate a number of the public’s suggestions. On June 10, 1999, the HRC
unanimously approved a revised version of the proposed ordinance policy statement that
refined some potential exceptions to the ordinance and provided additional details on
protected groups and enforcement prbvisions.
At its November 8, 1999 meeting, the City Council asked the City Attorney to draft an
ordinance for City Council consideration, develop a staff analysis of existing City anti-
discrimination policies and a legal analysis of the proposed ordinance (Attachment A.)
On June 11, 2002, the Policy and Services Committee reviewed information provided by
the City Attorney and recommended that an Anti-Discrimination Ordinance be drafted by
the City Attorney, and asked the City Manager to draft an implementation plan and
timeline for the ordinance.
DISCUSSION
The proposed ordinance provides a comprehensive policy statement that addresses the
City functions that are not covered by federal or state anti-discrimination legislation. The
policy statement is:
It is the policy of the City of Pal0 Alto to affirm, support and protect the rights of every
person within its jurisdiction to be free from the effects of arbitrary discrimination, and to
be entitled to equal accommodations in all services and programs offered, funded, or
sponsored by the City or that are provided in a City facility.
The proposed ordinance lists the following protected categories:
CMR:401:02 Page 2 of 4
A.Race
B.Age
C.National origin
D.Housing status
E.Color
F.Religion
G.Ancestry
H.Marital status
I. Gender
J. Disability
K. Sexual orientation
L. Familial status
The proposed ordinance will cover:
City contractors (employment nondiscrimination)
City employment
City funding
1. Human Services Resource Allocation Process (HSRAP)
2. Parties receiving subsidies or in-kind contributions from the City
[]Real Estate
1. Longterm leases
2. Hourly rental leasing for a period of more than 29 consecutive days
[]City housing (subsidized housing funded by the City, except for legitimate
housing projects designated for the disabled or senior populations)
[] City events, facilities and programs
The ordinance has several enforcement provisions. There is a provision that addresses
violations that involve City employees and the enforcement responsibilities of City
department heads. The ordinance also identifies enforcement provisions when City
contractors are involved.
Upon adoption of the Anti-Discrimination Ordinance, the City’s Human Resources
Department will establish management, supervisory employee responsibilities and
employee responsibilities, as well as create a complaint procedure similar to the existing
Harassment in the Workplace Policy and Procedures. A mandatory training program for
all employees will be created. The new ~training program will be incorporated into the
mandatory training sessions that are currently required On diversity, violence in the
workplace and harassment in the workplace.
An informational program will be established to first inform all City staff about the
ordinance by using a number of mechanisms including City Manager hosted meetings,
department meetings, division staff meetings, and pamphlet such as "Harassment in the
Workplace" for each employee, as well as articles in the employee newspaper, "In the
Loop".
City contracts will include specific requirements to comply with the anti-discrimination
provisions. These are contracts between contractors, parties receiving city funding,
subsidies, or in-kind contributions and parties leasing property or facilities. The City
Attorney’s Office will make the necessary changes to City contracts in order to comply
with the Anti-Discrimination Ordinance.
CMR:401:02 Page 3 of 4
RESOURCE IMPACT
The costs to implement the plan will be minimal because the City has the systems in
place to address the action items needed to implement the Anti-Discrimination
Ordinance. Funding for this program will derive from current appropriations within the
Community Services Department. No additional funds are requested at this time.
Additional funding may be requested during the 2003-05 budget process.
POLICY IMPLICATIONS
Should the Anti-Discrimination Ordinance be established, there will be necessary
¯ changes in the City’s Municipal Code, contracts, employee mandatory training,
orientation programs and the manager training program.
ENVIRONMENTAL REVIEW
The proposed recommendations do not necessitate any environmental assessment as
defined by the California Environmental Quality Act (CEQA) and is not ~ubject to
CEQA requirements.
ATTACHMENTS
Attachment A:City Attorney’s Report, "Review of Human Relations Commission
Anti-Discrimination Ordinance Proposal"
PREPARED BY:
OZA-HOWARD
Director of Human Servic.e.a_____
.-/-
DEPARTMENT HEAD:-<~’~ ~-~]-~--~~ "~~
PAUL THILTGEN
Director of Community Services
CITY MANAGER APPROVAL:
~t~t City Manager
CMR:401:02 Page 4 of 4
FROM CITY ATTORNEY
April 15, 2002
’ THE HONORABLE ~ITY COUNCIL
Palo Alto, California
Attention:Policy & Services Committee
~:¯RE:-"Review of Human Relations Commission
Dis~rimfnation Ordinance Proposal
’ Dear Members.. of the Coun.cil:
Anti=,
This report forwards two legal analyses of .the above.-
referenced matter. I am also including several of the relevant
sections, of ex.isting .City law and policy.
The more recent repor~ was prepared by Michael G.
¯.Colan.tmono., Esq.,and completed on April 12, 2002 after
consultation with this office.Mr. Colantuono’ s report
:.::orep.~esents the position of. this office. The report concludes
that the HRC’ s anti-discrmmination proposals are legally
.:achievable, except with respect to housing - and non-city
empl.oyme, n.t which are fields preempted by state law. The report
~.~g.iaddresses neither the policy desirability of the proposals nor
;,tie ~dminisgrative costs and impacts. These areas are very
sig£~ifica~, b:ut largely outsi.de the scope of legal review.
I am also inclGding a report prepared by Jeffrey B. ~"
Hare, Esq., at my requesm, in December 1999. Mr. Hate’s report
.....~oes into valuable detail on severa! issues, and I thought it
-.~ould be -useful to share with Council.Mr. Hate’s report
includes the HRC’s original proposal.:::’~
¯ . Fin~ally, I have included copies of several existing
:~City anti-discrimination materials. As an example, the City
</currently requires contractors ~o certifZ their compliance with
anti-discrimination laws. My preliminary review suggests, as
020415 sm 0053019
THE HONORABLE CITY COUNCIL
April 15~ 2002
Page 2
RE:Revlew of Human Relations Commission
Discrimination Ordinance Proposal
Ant i -
¯Mr. Colantuono concludes, tha< the City can do more in the area
of non-residential leasing and City programs and services.
"Doing more" can take several forms ranging from
ordinances to policy resolutions (.which could be implemen<ed, by
the City Manage~). I-look forward ~.to assisting the Council in
this regard.Mr.Colanzuono will also be. available ~.upon
request.
Res
AR {L PIERRE CALONNE
City Attorney
APC:sm
Attachments
.cc:Human Relations. Commission
MichaelG. Colantuono, Esq.
020415 srn 0053019
ATTAC
By Electronic and U.S. Mail
MEMORANDUM
TO:
FROM:
DATE:
FILE:
RE:
Ariel Pierre Calonne, Palo Alto City Attorney
Michael G. Colantuono, Esq.
April 12, 2002 ~
10677-0011
Propo sal of Human Relations Commission to Updatethe City-of Palo Alt0’s
Anti-Discrimination Ordinances -
Introduction and Summary of Conclusions. As you asked, I write to provide our analysis
of the proposal by the City’s Human Relations Commission (HRC) to update the City’s anti-
discrimination ordinances. Broadly stated, the proposal would protect members of 12 ’~protected
groups" from discrimination on account of theirme~ersh~ip in One of more¯ of the gro~2s. The
proposal would protect these group members xn
se~lces. ~ne b~ate beglsm~re has pre~~~ ~lUgislate w~th respect to
dism~i~fi~;?’.~-~fi~d~g]fig and in ~~5~~~ It is an open q~estion whether the Ci~
may legislate agaNst discrimNation in Ci~ employment, although we thi~ appropriate means.to.
address this goal can be identified ~ any event. Thus, the oppo~ni~:for the;~ity to.adVance the
pu~oses of the Commission’s proposal is ~eatest with respect to~}ifclud~g
,,~te~s:~a~go~.~g~g~ti~l leases) and in Ci~ pro~ams and se~"~es:
discussion of these issues follows.
The Proposal. The HRC recommends that the City adopt a statement of policy opposing
¯ discrimination. It recommends the City further that policy statement by legislating against
discrimination against members of the following "protected groups":
CALONN-I .WPD
ArM Pierre Calonne, Palo Alto City Attorney
April 12, 2002
Page 2
Race
Color
Gender
Age
Religion
Disability (to be defined as in state and federal laws). . : ~:.
National Origin
Ancestry ¯
Sexual Orientation " .
Housing status (to be defined.similarly:to Cook County, Illinois ordinance; to protect
renters, residents of subsidized housing; and persons who are currently unho~se...,d).
Marital Status; and
Familial Status ....
The proposed ordinance "should cover the following topics":
Employment by the City;
Contractors for the City will be required by contract not to discriminate in employment
against the protected groups; -
Parties receiving funding, subsidiesor in-kind contributions from the City will be...:,
reqfiired to agree not {o discriminate against the protected groups; .
Parties leasing property from the City for a period of mor~ than 29 consecutive days ~¢iI1 ’
be required to agree not to discriminate against the protected groups;
All City subsidized housing shall not discriminate against ~any of the protected groups,
except in cases of legitimate senior or disabled housing projects;
The City shall not discriminate against any of the protected groups in the provision of any
City program, facility or event. ~. : ..
Given the state of the law, we think these proposals are best analyzed as raising these issue areas:
City employment, City contracting (including service contracts; funding contracts, and non- . ’.,-
residential leases), and City programs and services.
The HRC recommends that the following enforcement mechanisms be .included in the
ordinance: discipline for City employees who violate the ordinance, debarment of Contractors,
lease termination, and termination of subsidies. In addition, the HRC recommends that direction
be given to all departments heads to enforce the ordinance "with respect to activities under their
control" and that the City Manager and HRC "be given authority to investigate alleged violations
CALONN~I.WPD
Ariel Pierre Calonne, Palo Alto City Attorney
Apri! 12, 2002
Page 3
with the City Manager bei.ng given ultimate authority to determine penalties.’’1
The following "exemptions" are proposed, as well:
~-~~~’~6~’~gN~gfl~e~gloabled is exempted fromthe age. discriminat, ion
provision; .
Groups tha provide NN~:~N~~ to minors may restrict pa~iciPation by ~N~d~
:~d~r;
Employment R:{.f~mity ~embers shallnot be construed as employment discrimination;
~~ops~ " 1~ - " ..... ’: ~’~- ~"~~" ~:~’:~-and Slmlla~~s’ ’ ~. N .... ~’":" ~;~:~:~ for the blind" or .
disabled shall be. authorized to iestrict emplo~em to the c0~unities ~hey’serve;
Employers may discrim{nate on the basis of bona fide occupational qualifications, as
defined under federal law;
A legitimate seniofiW system in employment; as defined ~der federal law, shall not be.
considered discriminatow; and, ~: -~ .-:: . -..
This. law shall not prohibit regidential landlords Kom requiring the same financial
obligations of all tenants.
Preemption of Employment and Housing Anti-Discrimination Ordinances by the Fair
Employment andHousing Act. Discrimination in employment and housing is proscribed by a
number of state and federal laws. The Fair Empl6yment and Housing Act (FEHA) is the state’s
primary anti,discrimination statute and it provides a broad range of remedies for discrimination
against many (but not all) of the "protected groups" identified by the HRC. That statute
preempts local legislatii~n in this area. Government Code Section 12993(c) states:
"While it is the intention of the Legislature to occupy the field of regulation of
discrimination in employment and housing encompassed by the provisions :of this
part, exclusive of all Other laws banning discrimination in employment and
housing by any city, city andcounty, county, or other potitical.subdivision of the
state, nothing contained in this part shall be construed, in any manner or way; to
limit or restrict the application of Section 51 of the Civil Code." (Emphasis
added.)
The California Supreme Court has interpreted this somewhat ambiguous provision to preempt
~This last remedial proposal requires creation of an administrative adjudication system.
The City has power to do so, but complex and detailed issues will need attention in the drafting
of such a system. We can provide advice on those issues at the drafting stage, if that woutd.be
helpful to you.
CALONN~I .WPD
Ariel Pierre Calonne, Palo Alto City Attorney
April 12, 2002
Page 4
local legislation to redress discrimination in employment and housing with respect to not only the
potential bases of discrimination identified in FEHA, but on any other basis as we!l:
"both of the predecessor statutes to .section 12993(c) indicate a legislative intent to
s~tlvn 5 ! in subdivision (c),preempt only local law. ~qla~ refere,~c~ ~o Civil Code
therefore, provides no support for the view that the FEHA was intended to.
displace state laws relating to employment discrimination. Its purpose, rather, v~as
to retain local enforcement authority against housing discrimination. Thus
understood, subdivision (c) is harmonized with section 12993, subdivision (.a),
which, as indicated, expresses a legislative intent not to displace 0~her applicable
state taws.~’ Rojo ~. Kilger, 52 Cal.3d65, 78-79 (1990).
The fact that Palo Alto is a charter city with power over "municipal affairs"~ that may not
be preemptedby the Legislature, .which may legislate as to a.charter city o.nly with respect to
matters of "statewide’" concern, does not change this result. In DelaneY vl Superior Fast. Freight,..
14 Cal.App.4th 590 (1993); the Second District Court of Appeal invalidated a Los Angeles
ordinance which forbade employment discrimination on the basis of sexualorientation when
FEHA did not yet do so. The Court concluded that the Legislature had preempted the entire field
of discriminationin employment and housing and, impliedly, found thi s.to be a matter of
statewide concern.
It.is an open question whether the Legislature may preempt .a. charteiTcity’ s regulation of
discrimination with respect to its own employees. The somewhat dated decision of Warner.v.
City of Los Angeles, 231 Cal.App.2d 904 (1965),~ allowed that city to compel a white fire fighter
to dine with his non-white fellow firefighters while on duty. The court rejected the white
fire fighter’s contention that one of FEHA’s predecessor statutes preempted the City’ s rule:
"Appellant also contends that respondents [i.e., the city and its fire-department]
are deprived of any power to make regulations designed to eliminate racial
discrimination because the state has occupied the field by the Fair Employment
Practice Act, Labor Code sections 1410-1432. We disagree. The regulations in
question are designed to eliminate employee discrimination. The Fair
Employment Practice Act has no provisions against direct discrimination by
employees against other employees. Its thrust is a.gainst discrimination by
employers and thus does not preclude regulations aimed at employee
discrimination. [FN3]
FN3 Respondents suggest in connection with the above argument of appellant that
the F.E.P.A. does not apply to a chartered city as employer. In me.eting appellant’s
point directly, we do not mean to imply that we agree or disagree with
CALONN-I,WPD
Ariel Pierre Calonne, Palo Alto City Attorney
April 12, 2002
Page 5
responde~nts’ suggestion. Id. at 905-06.2
Palo Alto’s power over its employees derives from its charter~ which is authorized by
Article XI of the California Constitution. Section 5(b) of that Article provides:
"(b) It shall be competent in all city charters to provide, in additionto those--,-: ,;
provisions ,allowable by this Constitution, and by the laws 0fthe State forl (1) the
constitution, regulation, and government of the city police force (2)subgovern-
ment in. all or-part of~a’ city (3) conduct of city elections and (4.)plenary authority
is hereby granted, subject only to the restrictions of this article, to provide therein
or by amendment theroto, the manner in which,.¯ the method by which, the..timos at
which,-andthe’ terms for w.hich the several mfinicipal officers.and employees:;. ~ : .
whose compensation is paid by the city shall be-electedor appointed, and for ..
theii" ~emoval, and for theircompensation, and for the number .of deputies, .clerks
and Other employees¯ that each shall have, and fog the compef~’sation~method of .
’ appointmerit; qualifications, tenure of office and removal of~such deputidS; clerks
and other employees." (Emphasis added.) :.
The emphasized language would seem to grant a charter city very broad exemption from
the power of the Legislature With respect to employment law, However; the courts have
nonetheless fouo:~.~~3~gtewide concern of sufficient weight to limit the sweep¯ of this .language
a.~r~N:~?~:t~~~~~Nl~eNg2~er~cities San Leandro Police ’
Officers Ass ~ .v. Ci& ofS~n Leandro, 55 Cal.App.3d 553 (1976) (labor relations is not a
m~icipal affair; cha~er ~ities are subject to the Meyers-Milias-Brown Act).. ThereNre, we must
coneNde that-there, is a strong risk that the coups will, when they reach the question,: find
state’s ~terest in preventing discrimination in the workplace similarly c0mpe!l~g.. Thus, we
expect the coups to role FEHA does preempt the power of a cha~er city to dete~Ne whether
and how t0 discriminate with respect to its own employees or whether and howto prevent such ’
discrimination. The 1NelNood.of this result would seem especiallp strong, if a ci~ sought to
exempt Rself ~om FEHA’s requirement that employers not discriminate in violation ofi~e Act.
However, the City does retain ~.~:;N~5~~Nb~g~,ity and its
:~tmim:s~rauon, This power, whether expressed t~ough th~provisions of labor a~eements
(which we ................."~ .............~’~*~ ............understan~~~~~N~g~) Or via adm~istrative
regulations, is probably suffic~entlv,hma~9: -.-~ ~s~~~e have not
2The Delaney court distinguished the Warner decision and did not overrule it. 14
Cal.App.4th at 597.
CALONN-I.WPD
Ariel Pierre Calonne, Pal0 Alto City Attorney
April 12, 2002
Page 6
been engaged to review the City’s current regime of anti-discrimination agreements, policies and
regulations with respect to its Own employees. However, we conclude that the City can, i.fitchooses, find appropriate means to accomplish the goals of the HRC proposa!. with respect to
protecting City employees from discrimination.
" No General t~reempti°n °fCity Regulation of the Conduct of its Contractors. In coritrast
to housing and empRiyment digcrimination, the City retains broad power to pfeVer~:
discriminationvia the terms on which¯ it contracts for services, to provide subsidies a,ndother-
funds, and to lease its non-residential property. In Alioto’s Fish Co.~, )Ltd. "¢.Hi~ma~ Relations
Commission of the City of San Francisco, 120 Cal.App.3 d 594(1981); the City iso~glit t0 enforce
prdvisions of a lease to restaurants operating ~n a city pier that required the restaurants to ¯
maintain anti-discrimination poli;ies in their employment practices. The restaurant c0nten.d;a
that the lease provisions were preeriipted by FEHA, but-the courts disagreed: ...
"both ~kii sta~and iederal LegiSlatures have concluded that nondiscrimination ~ -
provisions in con~dts~t6 no~ in any meaningful way interfere with the ~i i ~i.
administration of general laws prohibiting discrimination in empioymetit, Based
upon the foregoing analysisl we conclude that the trial court erred in ruling that
FEPA [the Fair Employment Practice Act, a predecessor to FEHA] occupied the
field of employment discrimination so as to preclude the City from inserting
nondiscrimination and affn’matiye action provisions in its ieaseswitii the
Restaurants. Id. at 6062
Accordingly, the City may impose non-discrimination obligations on its contractors with
respect to employment practices, treatment of clients and customers, etc.. and is notpreempted by
FEHA from doing S:O.4 -’.’Contractors" in this sense would include lessees ~,f City non-residential
property and recipients of City funding .....The City isNot Preempted from Preventing Discrimination in Its Own Progeams hnd
Services. We con;lude that the City;s power to operate its own programh,~hd to govern its¯e!f
~To similar, effect is an early opinion of the California Attorney General. See 42 Ops..
Calif. Att’y Gen’l 169 (1963). ¯
4The City must take care in exercise this power not to exceed its constitutional power, as
by interfering with interstate or intercity commerce, or by seeking to regulate persons who.have
-not brought themselves within the City’s jurisdiction. In addition, certain federal statutes,
notably the Employee Retirement Income Security Act (ERISA), are preemptive with respect to
particular issues. These, however, are drafting issues which need not distract the Council as it
seeks to formulate policy direction with respect to the HRC proposal.
CALONN-I.WPD
Ariel Pierre CaIorme, Palo Alto City Attorney
April 12, 2002
Page 7
pursuant to its charter also extends, to preventing discrimination in the City’s own programs and
services~ provided, of course, thatthe City does not itself discriminate in violation of state and
federal civil rights laws. This follows from the rationale of the Alioto’s Fish Co. and Warner
ca~es cited above: if the City may prevent discrimination via its contracting power, and may.
prevent discriminatory conduct by its employees, directed .at one another, it would seem.to follow
that it has power to prevent discriminatory conduct by its employees directed at the City’s : .
residents and other participants in City programs and at recipients of City services.. The research
we have done to date has not provided direct authority on this issue,~however. Please let me
know if you would like us to research this issue further.
Comments on HRC’s Proposed Remedies.: The HRC proposes essentially three types of
remedies: discipline of City employees, contractual remedies, and administrative enforcement by
both the HRC and the City Manager. Discipline of City employees is, we understand,
extensively regulated by the City’s charter, ordinances, policies, and labor agreements. It seems
likely that the City already has authority to discipline employees who.willfully violate City
policy. If so, implementation of the HRC proposal will require.policZ changes, but no change to
the emp!oyee discipline rulgs. If changes to disciplini~ry policiesare required; the. City-must first
bargain with its employee representatives under the Meyers-Milias-Brown Act before it may
implement the changes. In any event, this issue can be addressed at the drafting stage, after
policy direction is given by the City Council. Contractual remedies of the type suggested by the
HRC would.all appear to be within the City’s contracting power, as demonstrated by the issues
litigated in the Alioto’s Fish Co. ease. Administrative enforcement is also fully within the City’s
power to provide, but involves both questions of policy and a number of technical,-drafting
issues.
cDmments on HRC’s.ProposedExemptions. The first and seventh of the exemptions
suggested by the HRC (and set forth at the outset of this memo) relate to:housing issues and are
therefore preempted.(except as to the, perhaps small, class of City contractors who are also
landlords). The second exception, regarding age and gender discrimination in youth recreation
programs, would appear to apply to the City’s own recreation programs. This exemption and the
remaining exemptions can properly be applied to City contractors via the City’s contracting
power.
Conclusion. In sum, the HRC’s proposal is largely within the City’s power to adopt and
to implement. However, the does City lack power to regulate discrimination in housing and’
employment. While the City’s power to legislative anti-discrimination rules with respect to the
treatment of its own employees is doubtful, its administrative powers to manage its employees
should allow accomplishment of the HRC’s goals by non-legislative means. The City retains
power to prevent discrimination by those who choose to contract with it, whether to provide
goods and services, to accept subsidies and other funding, or to lease City non-residential
CALONN~I.WPD
Ariel Pierre Calonne, Palo Alto City Attorney
April 12, 2002
Page 8
property.5 The City also retains power to prevent discrimination in the delivery of its own
programs and services. Whether and how to implement the non-preempted elements of the HRC
proposal is, of course, a policy question for the City Council.
If you have questions or comments about the advice stated here, please call me at (213.)
533-4146 or contact me ~ia email at mcolantuono@clrlawfirm.com. If we can provide further
assistance with respect tO the analysis or implementation of this proposal, We would be.pl~’a;~d td
do so. Thank you for the opportunity to assist! ~ .-
5Of course, the City may not impose additional contractual terms during the term of an
existing contract. Accordingly, existing City contractors cannot be subjeeted to the new rules
until their contracts are renewed.
CALONN-I.WPD
PALO ALTO HUMAN RELATIONS COMMISSION
PROPOSED ANTI-DISCRIMINATION
ORDINANCE
ANALYSIS
PREPARED FOR:
ARIEL PIERRE CALONNE
................ CiViA :id y
CITY OF PALO ALTO
PREPARED BY:
Tel:
JEFFREY B. HARE
Attorney at Law
A Professional Corporation
80 North First Street
San Jose California 95113
408-279-3555 Fax: 408-279-5888
Jbhlaw@pacbetl.net
CONFIDENTIAL COMMUNICATION:
ATTORNEY - CLIENT AND WORK I~RODUCT PRIVILEGE
CONFIDENTIAL COMMUNICATION: ATTORNEY -- CLIENT AND ATTORNEY WORK ~RODUCT PRIVILEGE
TO:
FROM:
DATE:
SUBJECT:
Ariel Pierre Calonne, City Attorney
Jeffrey B. Hare
December 15, 1999
PROPOSED ]~RC ANTI-DISCRIlYRNATION ORDINANCE OUTLINE
INTRODUCTION
On November 8, 1999, the Palo Alto City Council reviewed a requestby the City
of. Palo Alto Human Relations Commission (H~C) to adopt an anti-discrimination
ordinance in accordance with the policy statement and outline approved by the HRC on
June 10, 1999, The City Council voted to direct the City Attorney.to prepaI:e an analysis
of a proposed ordinance relative to existing state and federal guidelines, -
SUMMARY
The Human Relations Commission (HRC) of the City of Palo Alto has put
together a comprehensive proposal for a discrimination ordinance, summarized in the
form of an outline dated JUne21, 1999. In september, .1.999; the Calif0rnia-Legisiature
substantially amended the California Fair Employment and Housing Act (FEHA) and the
Unruh Civil Rights Act., effective January 1, 2000, including adding .the category of
"’sexual orientation" to the list. of protected groups, and enlarging the scope of the
Department of Fair Employment and Housing (DFEH)’s enforcement authority.
Although there may be some minor issues with respect to preemption under federal law;
depending on how the proposed Palo Alto ordinance is drafted, most of the proposed
objectives in the HRC Outline could be adopted in the form of an ordinance consistent
with state and federal law..The Palo Alto Municipal Code-aiready incorporates all
applicable state arid federal discrimination provisions by reference, into its requirements
imposed on contractors, and with minor modifications, could easily incorporate many of
the amendments proposed by the HRC. Alternatively, the City could elect to enact a
more comprehensive and far-reaching ordinance, such as that found in the San Francisco
Administrative Code.
Proposed HRC Anti-discrimination Ordinance . Page 1 of 20
CONFIDENTIAL COMMUNICATION: ATTORNEY -- CLIENT AND ATTORNEY WORK PRODUCT PRIVILEGE
According to DFEH, it will be at least one year before the Department will beabl~., to_ !0mmulgate r.egulations.. and guidelines w!th r~spect..~o .the ~mendmen~ts .which-
were enacted this year, In light ~fthe Legislative amendments enacted subsequent to the
submission of the proposed HRC Outline, the Commission may want to consider whether
it would be necessary to include all or substantially all of the proposed requirements set,
forth in the Outline in the proposed ordinance,
: ’ BACKGROUND
As detailed in the City Manager’s Report1 dated November’ 8, !999~. and the
attachments thereto, the concept of an anti-discrimination.ordinance originated in the Fall
of 1998 as a result of concerns over the apparent lack of sufficient Palo Alto. ordinances
. .to deai with the issues involving discrimination. One issue involved the use of the Lucie
Stern center by a local Boy Scout Troop. The official policy of:the.National Council of
the Boy Scouts of America is that homosexuality is inconsistent with ihe Boy Scout Oath
and Law.2 The Palo Alto Mumc~pal Code does, not currently pr0hibit discrimination
based on Sexual orientation, l~ut inasmuch as it requires compliance with "all federal and
state laws," it effectively will include such a prohibition af~er January 1, 1999.
As a result of these discussions, the HRC formed a subcommittee to research what
other cities were doing, and reviewed ordinances from the cities~.o£ .Berkeley, San
Francisco and Cook County, Illinois. From this, the subcommittee prepared an outline
for a prop0sedordinance. On May 13, 1999, the HRC conducted a public hearing to
consider comments related to the proposed ordinance, and ohJune 10, 1999, ti~e HRC
approved a revised version of the proposed outline which it forwarded to the City
Manager and City Attorney on June 21, 1999, a copy of which is attached hereto as
Exhibit "A." According to the CityManager’s Report, the HRC incorporated: "a number
of the public’ s. suggestions" made at the public hearing conducted on May 13th-, Although
most of the comments:involved the use of the Lucie Stern Center by the Boy Scouts,
there were also requests that the proposed ordinance should include provisions based on
marital status, youth and gender. As noted below, the City Manager also indicated that
the categories should also include "military discharge status" and "source of income."
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This memorandum will review the key provisions of the HRC Outline, applicable
provisions of state and federal law, and relevant portions of the mun!cipal ordinange.s Of
San Francisco, Berkeley, Hayward and Palo Alto.
DISCUSSION
A.Proposed tIRC Outline
The Outline submitted by HRC contains a Statement of Policy, a list og protected
groups, and a proposed Scope of Coverage, as. well as provisions for enforcement and
exceptions. The. Scope of Coverage contains the following categories: .
a.Employment by the City.
b.Contractors With the City,
c.Parties receiving funding;:subsidies or in kind contributions.
d.Parties:leAsing property from the City for more than 29 consecutiy.e days.
e.City subsidized housing, except.for legitimate senior or disabled .housing.
f.City programs, facilities.or events.
The Outline includes a list of "protected groups" proposed to.be included in the
ordinance. The proposed list of protected groups is as follows. The categories marked
with an asterisk (*) are-currently listed in the Palo Alto Municipal Code ("PAMe") as
protected categories for’contractors:a
a..Race*
b.Color*
c.,~Gender
d.Age
e..Religion*
f.Disability
g,National Origin*
h.Ancestry*
i.Sexual Orientation
j,Housing status
k Marital status
1.Familial status
The HRC Outline also included two categories not expressly listed in:;.either
FEH~ or in the San Francisco or Berkeley ordinances: housing status and familial :status
The I-IRe Outline notes that. the category of "housing status" .is to be defined similarly to
The. City Manager’s Report states appears to add "source of income" and "military discharge
status" to the other categories to be protected, neither of which is hsted in the HRC Outline. However,
"source of income" has been added as a protected basis, of discriminalion with respect to the provision of
housing accommodations. (SB 1098, amending § 12955).
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the Cook County, Illinois, ordinance,3 and is designed to "protect renters, residents of
subsidized housing, and persons who are currently unhoused." (from HRC Memo dated
June 21, 1999).
:’Familial status" is intended to address discrimination against families wi:h
children, PAMC Chapter 9.74, ."Discrimination Against Families with Minor Children in
Housing," makes it unlawful to discriminate in connection with providing housing
accommodations, or to refuse to rent or lease or otherwise deny housing accommodations
from any person, on tl~e basis of age, parenthood, pregnancy; or. ffi~ potential :or actu~.l
tenancy-,of a minor child. (PAMC § 9.74.030). It has long been the case tlaat arbitrary
discrimination based on familial status is a violation of the Unmh Civil Rights Act (Civil
Code § 51, etseq.).4
B,Municipal Ordinances
¯o 1.City and County of San Francisco ..
The codes,.of the" C~ty and County of San Francisco contXiff alcompi’ehensive ¯
series of ordinances which address issues related to discrimination. Section 3301 of the
San Francisco Police Code states as. follows:
It is the policy of the City and County of San Francisco to.eliminate
discrimination based on race, religion, color, ancestry, age, sex, sexual
orientation, gender identity, disability or place of birth within the City and
County,
Since 1972, the San Francisco Administrative Code-has barred the City from
contracting with Companies that discriminate on the basis ofsexual orientation.5 -(San
Francisco Administrative Code Chapter 12B). (A copy ofChapters 1.2B and t2C are
attached as Exhibits "B"). Chapter 12B applies this prohibition to all contracts and
proper~y contracts, and expands the list of protected groups to include domestic partner
status, persons with Acquired Immune Deficiency Syndrome, HIV status (AIDSit-IIV
status)~ and association with members of classes protected under Chapter 12B. A
"property contract" is defined, in part, as follows:
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"Property contract", shall mean a written agreement for the exclusive use
or occupancy of real property for a term exceeding 29 days in any
calendar year, whether by singular or cumulative instrument, (i)for the
operation or use by others of real property owned or controlled by the City
for the operation of a business, social, or other establishment or
organization, including leases, concessions, franchises and easements, or
(ii) for the City’s use or occupancy of real property owned by others .....
The term "property contract" does not include revocable at-will use or
encroachment permits, street excavation, street construction or street use permit.s,:::or use.
of City property which constitutes a public forum for activities .protected by the. First
Amendment, or~vhich are primarily recreational in nature. "
Chapter 13C of the San Francisco Administrative Code requires that all .contracts
and property contracts include nondiscrimination provisions.
The san Francisco Administrative Code also contains an extensive: list of
exceptions and waiver provisions designed to provide the City with flexibility in~:the
administration of its contracts. Some of these allow the City towaive the requirements
when no other contractors are available.
2.City of Berkeley
The City of Berkeley Municipal Code contains four chapters which prohibit
discrimination against families with children and students (13.24), against employees by
contractors with the City(13.26), on the basis of sexual orientation (13.28), and on the
basis of AIDS and related conditions (13.30). These provisions contain substantially
similar cat-;gories of protected groups as the San Francisco Administrative Codes. The
Berkeley ordinance also references any state, federal or municipal ordinance.
3. City of Ha.yward
The City of Hayward prohibits discrimination in employment practices by city
contractors in both construction and "nonconstruction" contracts against any employee or
applicant for employment on the grounds of race, color, religion, national origin,
ancestry, place of birth, sex, sexual orientation, age, or disability. (Article 7, S ec. 2-
7.00),6
4, City of Palo Alto
The Palo-Alto Municipal Code ("PAMC") currently requires contractors bidding
for City contracts to provide a certificate stating that the contractor is in compliance with
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all federal and California laws with respect to employment, and that if awarded the
contract, will not discriminate in the employment of any person on the basis of race,
color, national origin or ancestry, or religion. This requirement applies to contracts in
excess of $5,000.00. (PAMC § 2.30.160). The Code also provides that any contractor
found in violation of the State of California Fair Employment Practices Act ("FEHA"),
or similar provisions of federal law or executive order in the performance of a City
contract shall be found to be in material breach. (PAMC § 2.30. 170),
C."::California Statutes.¯" ....................................
Fair Employment andHousing Act ~EHA)
FEHA (Government Codeb 4§ 12900 et seq), was enacted in 1980 as a combined
codification of the Fair EMployment-Practices Act (FEPA) of 19159, and the Rumford Fair
Housing ACt. FEHA established the Department of Fair: Employrri~ht and. Housirig
(’.’DFEI-I")I whose function is to investigate, conciliate and seek redress ofdiscrimination
claims, and the Fair ..Employment and Housing Commission (,Commission’?), which
performs adjudicatory’and rulemaking functions.. If the Department is uffable to resolve a
~omplaint through conference, conciliation, and persuasion; it may pi:osecute the claim
before the commission. Rojo v. Kliger (1990) 52 Cal.3d 65, 72.7
Generally speaking, FEHA makes it unlawful to ..-engage: in. specified
discriminatory employment practices on the basis of race~ religious cree~d; color, national
-origin, ancestry, physical handicap, . medical condition, marital status, sex, or age. FEHA
also makes it unlawful to engage in specified discriminatory practices in housing
accommodations .on the. basis ofrace,.color, religi0nl sex, maritalstatus, national ’origin,
ancestry, familial status, or disability. Discrimination. in the area. of housing
accommodations based on age ma.y be permitted in some circumstances, such as for the
provision of housing for seniors only .....
As discussed, more fully below, a number of provisions of FEHA.were recently
amended to add "sexual orientation" as a protected class with respect to both employment
and housing discrimination.
All statutory references are to the California Government Code unless otherwise specified.
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2. Unruh Civil Rights Act (Civil Code § 51, et seq).
The courts have long interpreted the enumerated categories, of protected groups
under the Unruh Civil Rights Act liberally, holding that the classifications contained
therein were not exclusive, but illustrative only. Rolan v. Kulv~itzky (1984) 153
Cal.App.3d 289.8 In Rolan, the Court noted that the Los Angeles Municipal Code
contained an ordinance making it an unlawful business practice to discriminate on the
basis of an individual’s .sexual ~)rientation.9 However, the prohibition against
discrimination under CC § 51 extends only to arbitrary classifications, and did not sevve.
to prohibit a .medical building from refusing to lease to anyone .gther than medical
doctors. Roth v. Rhodes (1994) 25,Cal.App,4t~ 530.1° The Court cited a number off.cases
-for the principal that the classifications of CC § 51 were not exclusive, but illustrative
only, and that the statute prohibits all arbitrary discrimination by business establishments.
(Id.., at .537) ,
3.: .LaborCode(§§ 1101, 1102, 1102..1) . ..
Discrimination o~ different treatment in any. aspect of employment or opportunity
for employment, as specified, based on sexual orientation, is prohibited pursuant to Labor
Code § 1102.1. This provision, which was added in 1992, codified decisions upholding
’the prohibition of discrimination based on ’sexual orientation. EffectiveJanuar.y l, 2000,
Labor Code {} 1102.1 is.:repeal~d, and incorporated into -FEHA. 1~.. :
4. California Civil Rights Initiative (CCRI.~
Article I, Section 31, oI" the California Constitution y~as enacted by initiative
(Proposition 209) on November 5, 1996. The initiative provides, in part, as follows:
(a) The state shall not discriminate against; or grant preferential treatmCn~t
to, any individual or group on the basis of race, sex; color, ethnicity, or
national origin in the operation of public employment, public education, or
public contracting..
Subsection (c) . provides that nothing, in Section 31 shall be interp~,~ted as
prohibiting bona fide qual~fications based on sex which are reasonably necessary to the
normal operation of public employment, public education, or public contracting.12 A
classification that passes muster under Title VII of the Civil Rights Act (see, infra), or
FEHA, will pass muster under CCRI.Ia The intent of CCRI was to abolish affirmative.
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action programs which were seen as providing undue advantages to some protected
classes.
Federal Law
There are several federal statutes and regulations which govern discrimination in
employment, housing, and with respect to persons with disabilities. Included among
. these are the Fair Housing Act Amendments of 1988, Title VII of the Civil Rights-Act of
1954 (42 .U.S.C §: 2000e), the Americans with Disabilities JkCt of 1990; and’the
EmploYee Retirement Income Security Act (ERISA). For purpose.s of this n~emorandum,
a detailed analysis of these provisions is not really necessary at this time, inasmuch as
both FEHA and the Unruh Civil Rights. Act specifically provide as much or greater levels
of protection under California law as ~hat provided in the federal statut~e~’. A more
detailed analysis o£ applicable federal law may-be more appropriately considered in
conjunction with the drafting of the actual ordinance ....
FEHA .deliberately seeks to provide greater protection-than.is affoi-ded under
existing federal taw with respect to discrimination against protected groups in the areas of
employment, housing and public contracts. Under California law; FEHA confers rights
either greater than, or .at a minimum no less than, those afforded pursuant to federal law,
.such ~s the Fair Housing Act Amendments of 1988,14 or the Americ~.ns witl~ Disabilities
Act of 1990.15 Similarly, the California Unmh Civil Rights Act also seeks to provide as
much or more protection as provided under the Americans with Disabilities Act of
1990.16
Depending on the scope of coverage of the proposed ordinance, there may be
additional issues with respect to the dormant Commerce Clause, and possible preemption
under ERISA. In Air Transport Association of America, et M., v. City and County of San
Francisco, et al., the .United States District Court concluded that San Francisco’s
Administrative Code, which imposed a requirement that all contractors provide domestic
partners benefits to their employees, was subject to the strictures of the dormant
Commerce Clause.1~ With respect to plaintiffs’ assertion that San Francisco’s
requirement was preempted by ERISA, the Court conducted an exhaustive and d.etailed
analysis of the various components of the benefits covered under the domestic partners
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requirements, and concluded that some, but not all, of the requirement was preempted
under ERISA. While there is nc~thing specifically menticmed in the proposed HRC
Outline that would extend the scope of coverage to include similar provisions requiring
domestic parmers benefits for all contracts with the City, care should be exercised in
drafting the specific language of the ordinance itself to avoid potential preemption
problems, of this nature.
E.Legislative Changes ~
Iri September, 1999, the California Legislature enacted several, interrelated civil
rights bills containing a numberof substantive changes to FEHA and the Unruh Act:
These provisions will go into effect on January 1, 2000.18 Two summaries of the
legislative changes pi’epared by.DFEH a~g attached as Exhibit "C." In additio~..t0 adding
"sex6~il brient~ition" tothe list: of categories pro:~ected under FEHA:..in .employment as
well as housing discrimination, the amendment re, peals Labor Code §:11.02; 1.; which .was
added in i 992 i~ pi:ohibiidiscrimination based on sexual orientation, ~d_incorp6rates the
prohibition, along with the legislative intent,into FEHA. The amendments shift authority
to enforce employment claims based on sexual orientation to DFEH from the Labor
Commissioner. One significant impact of this amendment is that such claims will now. be
subject to the ’0he--year statu~e of limitations under FEHA, rather than the 302day limit
under the Labor Code.
Tl~e broad, intent of FEHA is set forth in § 12920. Effective January 1, 2000,
FEHA §: 12920 has been amended to read, in part, as follows:
12921). It is hereby, declared as the public policy, of" this state that it is
necessary to protect and safeguard the right and opportunity of all persons
to seek, obtain, and hold employment without-discrimination or
abridgment, on account of race, religious creed, color, national origin,.
ancestry, physical disability, mental disability, medical condition, marital.,
status, sex, age, or gexual orientation.
Further, the practice of discrimination because of race, color, religion, sex,
marital status, national origin, ancestry, familial status, disability, or
sexual orientation in housing accommodations is declared to be against
public policy. (Amendments underlined).
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Other amendments to FEHA include express provisio~:,s that discrimination ba~ed
on the enumerated categories includes a perception that t_~e person has. any of the.
characteristics, or is associated with a person who has or is p,~rceived has having any of
those characteristics 19 The protection against unlawful haras~ment has been extended to
persons who provide services pursuant to a contract.2° Age discrimination may be shown
using the disparate, impact theory of proof.21 Another change is the addition of sexual
orientation as an impermissible basis of discrimination i~ housing:~}.-According to
DFEH’ FEHA.already prohibits sexual orientation discrimination in housing through its
incorporation of the Unruh Act.
In addition, FEHA has been amended to add "source of income" as a protected
basis of discrimination with ~e..spect to the provision of hous!ngl..:accommodatio~ns.
"Source of Income" is defined as lawful, verifiable income p.aid~directly to.a tenant or to
a representative ~f a tenant.~ Starting January 1,. 2000, DFEH will have jurisdiction to
enforce Civil Code § 51.5, which prohibits business establishments from. discriminating
against, boycotting, blacklisting, or refusing to contract with any person on the basi~ of
rac.e, creed, color, national origin, sex, or disability, and includes a prohibition based on
association or Perception of these characteristics..Note that this amendment, does not
!ncIude the. ..haracteristic .of. ’Isexual orientation.~’_ ..This. amendment.als0.eliminates-..t:he
private right of action for enforcement of this provision. ~4
According to DFEH, it will be at least a year before .regulations wi!l-be
promulgated which will provide further guidance for interpretation of some of the
amendments enacted this year.
F.Boy Scouts Lease
One of the _concerns which triggered the request to review ~he Palo Alto
Municipal Code provisions related to discrimination was the use of the Lucie S~ern
Center by the Boy Scouts. According to Bill Fellman, Real Property Manager for the
City of Palo Alto, the Lucie Stern Center was constructed and bequeathed to the City, in
part, for Scout programs. Presently; approximately one-fourth of the space at the Center
is occupied by a local Boy Scout Troop pursuant to a lease agreement with the City.
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Community Services also uses the Center, and periodically may rent rooms to other
community groups. In addition to the Center, the Sea Scouts have a building on City-
owned land, and the Girl Scouts also own their own building on land owned by .the
City.2~ Pursuant to the proposed "scope of coverage" under the t~C Outline, it is
presumed that each of these organizations would be subject to the requirements., imposed
by the ordinance, unless otherwise exempted.
The issue with respect to City lease agreements with scouting organizagions has
received considerable attentionin the media, and occupied the overwhelming,-majorityof
the discussio.n during the HRC public hearing on May 13t~... This issue was also the
subject of two California Supreme Cour~ rulings in 1998, which concluded that the Boy
Scouts was not a business establishment under the"Unmh CivilRights Act.26
In the uncodified segment of Assembly Bill 1001, related to Legislative. intent,
Section 1, it is .expressly. stated that in incorpoyating the..prohibition against
discrimination on the basis of sexual orientation previously contained in Labor Code
1102.1 into FEFIA, as follows: .....
Any conduct that would have been a violation ofSection 1102.1 ... shall
be deemed a violation of this act. Nothing in this section is intended to
alter the definition of employer with regard to any bona fide scouting
.organization covered under Section 1102.1 of the Labor Code. as it read on
December 1, i.~.99...~....mphasis added) ............
Section 1102.1 expressly excludes from its definition of "employer" a "religious
association or orporation not organized for private profit.’aT Under FEHA, the term
"employer" is similarly defined (§ 12926)..
ANALYSIS
A.Preemption
As.noted, there are some minor but nonetheless potential preemption issues with
respect to federal laws and regulations, depending on the extent to which the proposed
ordinance would include certain requirements affecting benefits or extend the scope to
reach extraterritoria! areas. More detailed analysis of the federal preemption issues might
better be conducted when more specific information about the ordinance becomes
available. In the meantime, due to the express intent of both FEHA and the Unmh Civil
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Rights Act to meet or exceed the minimum standards required under federal laws and
regulations, it is adequate to evaluate the HRC Outline in light of existing California law.
The preemption provision in FEHA is set forth in § 12993, which, as amended by
AB 1001, expressly provides, in part, as fol!ows:
(a) The provisions of this part shall be construed liberally for the
accomplishment of the purposes thereof. Nothing contained in this part
shall be deemed to repeal any of the provisions of the Civil Rights Law or
o£ any .other law of this state relating to discrimination because of.race,
religious crg,ed, colo~r, national origin~ ancestry, physical-disabitity;~’:mer~al-.
disability,’~mediCal cohdition, marital status, sex, age, or~exual Orientation.,
unless thdse provisions provide less protection to the enumerated, classes
of persons covered under this part.
(c) While it is the intention of the Legislature to occupy the ’field Of
regulation of discrimination in employment and housing .encompassed by
the provisions, of this part, exclusive of all other laws banning
discrimin~.tion in employment and housing by any city; :city and. county;
-county, or other political subdivision Of the. state, nothing’Contained in this
pax shall be construed, .in any manner or way, to limit or restrict the
application of Section 51 of the Civil Code.
In 1993, .the Court of Appeal ruled that a local ordinanc~ which imposed a gener.al
-tYro-hibiti-6~ on z~i~.irn-i~n-gti-~.~i~t-~mI5~y~m~nt--~.n-..~h~b~giY-6f-ge~g~-fi~-~t-~i~ was
preempted. Delane’y v. Superior. Fast Freight (! 993) 14 ’Cal. App. 4th 590. . Plaintiff argued
that Los Angeles Municipal Code § 49.72, which prohibited discrimination in
employment based on sexual orientation, was preempted by Government Code §
12993(c). The Court noted that the Labor Code had recently been amended vcith the
addition of § 11.02.1 to codify earlier decisions and an Attorney General opinion
upholding prohibition against discrimination on the basis of sexual orientation.aS The
Court declared that even if it could be assumed that a.city was legally capable’of crea.ting
a right of action between a third persons by ordinance; plaintiff’s claim based upon the
Los Angeles Municipal Code was preempted by state law. The Court further noted that
the City Attorney had expressly warned that the ordinance, enacted in 1979, raised
questions of possible state preemption.
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Plaintiff argued that since FEHA, at that time, did not ban discrimination on the
basis of sexual orientation, the ordinance was not within the "field encompassed by the
provisions of this part." (Delaney, supra, 14 Cal.App.4th at 597), The Court disagreed,
and noted that FEHA.was enacted as the amalgamation of two. separate former statutes
which contained provisions displacing local regulation. The Court ruled, in part, that:
[FEHA’s] purpose is to preempt local law, but to retain local enforcement
authority against housing discrimination under section 5.t~ of the .Civil
Code. . -
Discrimination on the basis of sexual orientation is an appropriate ground
for statewide regulation, as is evidenced by the recent amendment, of the
Labor Code... ’
(Id., at 597-598.). (Emphasis added).
The Court in Delaney noted that amici Curiae had pointed’ out that a number of.
California cities and counties had adopted ordinances similar to that of Los Angeles,
prohibiting discrimination in employment on the basis of sexual orientation. The Court
found that although the Los Angeles Ordinance was preempted with respect to its
prohibition against discrimination in employment, it distinguished other provisions where
preemption challenges were rejected on other grounds.
One relevant example where the C0u~ rejected a preemption claim involved
imposition of a nondiscrimination requirement pursuant to a_ municipal lease agreement.
In Alioto’s Fish Company, Ltd, v. Human Rights Commission of San Francisco (1981)
-120 Cal.App.3d 594, several restaurants challenged the imposition of nondiscrimination
provisions of Chapter 12B of the san Francisco Administrative Code, pursuant to leases
with the Port Commissionl The restaurants argued that the nondiscrimination pr~visions
were preempted by FEPA (a predecessor to FEHA). Tl~e Court concluded that Chapter
12B was a proper exercise of the City’s power to enter into contracts. "A careful analysis
and comparison of FEPA and the provisions of chapter !2B, however, compels the
conclusion that the Legislature did not intend to preclude municipalities from including
nondiscrimination provisions in their leases." (Alioto % supra, at 604.) Moreover, the
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Court concluded that there was no conflict between the provisions under FEPA and
Chapter 12B of the Administrative Code. (Id.)
Nothing contained in either the current or amended provisions of FEHA would
appear to prohibit the City of Palo Alto from requiring contractors with the City to
comply with the ~nti-discrimination provisions of a duly-adopted ordinance, so long as
the scope of the requirements does not reach so far as to adversely impact interstate
commerce or otherwise violate federal law. It is not clear Whether Palo Alto could go as
-far-ii~ San Fraficisco,. . given the latter’s lengthy history of su’~l-iprovisi~’fi~
However,-it would appear that the City of Palo Alto could tmpose requirements
along the lines suggested in the HRC Outline to any party under eont.ract with the City.
This would effectively permit the City to impose, such requirements on many of the
categories listed in the Outline ~’Sc0pe oi’ Coverage" section,.~in~tifldingc0ntractbi-s,
parti~.r~cei¥ing fundi~ng, subgidi~s~, or in-kind cohtributions;~ a~d p~rti~s lea~i:ng prdperty
¯ or facilities fro~rriitie’City of Palo Alto.
..... Wha~ is.not as clear is the extent to which the City:c0uld impbse responsiSility, .
and liabilityfor violations, upon City employees, pursuant to the ordinance. It would.be
prudent to first consider the existing provisions of the Merit Rules,-MOAs, Policy and
Procedure. Manual, and other applicable regulations and guidelines affecting municipal
.............. -=emptoyees,:a.o. . . - ~- .......................
B.-Enforcement
The HRC Outline proposes a number of enforcement provisions, such as making
violation a cause of disciplin~ against City employees; barring City. contractors from
further contracting for a designated period; and termination of a lease or subsidies. In
addition, the Outline proposes that "Responsibility for enforcement of.the ordinance be
placed on all~partment heads-~~vith respect to activities under their control."
Obviously, the enforcement provisions should provide for apl~ropriate substantive
and procedural due:process requirements, and should not contravene existing contractual-
agreements, MOAs, or other similar arrangements To the extent that violation would be
a cause for discipline against a City employee, every .appropriate and necessary step,
including t~g,:must be taken to ensure effective compliance.~
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Another consideration is that DFEH seeks to enforce the provisions of FEHA
through "confe~-ence, conciliation, and persuasion," it may be worthwhile to consider
whether the proposal of a separate disciplinary process would, be preempted or
duplicative of existing DFEH enforcement procedures.
C.Exceptions
The HRC Outline proposes a number of exceptions, including provisions that
would exempt senior and disabled housing from the age discrimination provisions;
exempt groups thag provide recreational services to minors froih.age restrictions; .non-
profit workshops and similar retiabilitation services for the"blind; bona fide, occupational
qualifications ("BFOQ"); and legitimate seniority systems, as defined under federal.law.
This section also proposes to provide ~hat"employment of family members shall not be
construed as employment discrimination, and that landlords shall not be: p-)ohibited from
requiring the same financial obligations of all tenants.
Existing and amended provisions of FEHA and the Unruh Act already provide for
a number of these exceptions. For example, the characteristic of "age’. is-not included
among the list of protected groups under the FEHA provisions that apply to housing.
"Employee" is defined so as not to include any individual employed by his or her parents,
spouse, or ’child, Or 0:ny individual employed under a special license in a nonprofit
.............sheltered -wo rkshop-or-rehab ilit ati-on-facility. ~ 2--WN~--~glh~t
rental housing, FEHA has been amended to clarify that the landlord must assess the
standard only against th~ portion of the rent to be paid by,the tenant where the tenant
receives a subsidy,~a and a housing provider is required .to account for the aggregate
income of persons residing together "on the same basis" as the aggregate income of
married persons ~esiding together,a4
Therefore, most of the exceptions proposed by the HRC have already been
addressed,~ or will be addressed in the amended provisions of FEHA. However, in
reviewing the exceptions under the San Francisco Administrative Code,-there are
numerous additional exceptions and waiver provisions that appear to provide the City and
County of San Francisco tremendous flexibility to deal with issues, such as where there
are no other available contractors to perform the work; where specialized litigation
Proposed HRC Anti-discrimination Ordinance Page 15 of 20
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requirements; or where the contract which would otherwise be in violation of the express
terms of the ordinance would be in the best interests of the City.~5
Because the PAMC currently requires compliance with "all federal and state
laws," many contractors might find themselves subject to the Legislative amendments
January 1, 2000, It is presumed that there are some existing City contractors who might
possibly find themselves .violation, for example, if they operate .in contravention of the
new requirement respective to "sexual ofientationY The use of Lucie Stern Center by the
Boy Sc~.uts~. may.it~m ~)u~ tO be only one of several situations that need t~.be reviewed in
light, of tl~e new ~Legisli~tion. To the extent that the HRC seeks to impose iestrictions
pursuant to its contracting authority which exceed the requirements under-FEt-IA or the
Unruh Civil Rights Act(i,e,, "housing status" or "m!litary di;charge Statfis"), k may want
to consider providing exceptions and/or waivers for long-standing..cont~i~cts, or provide
for a pha.sing-in period. .. ~.
With respect to the use of the Lucie Stern .Center l~i) . the -Boy Scouts, some
conSiderationshould be given to the fact that both the Courts..:and: the Legislature
found grounds on which to ,exempt "bona fide scouting organizations" from new
requirements with respect to discrimination based on "sexual orientation." This would
not prohibit the City, pursuant to its contracting authority, from imposing such a
requirement, but care should.be ..taken to ensure-that any restrictions be .-appl!ed even-
handedly as to all similarly-situated programs utilizing publicly-owned facilities or
operating on City-owned land.
’ In light of the number of substantive amendments to FEHA and the Unruh Civil
Rights Act, it might be possible tp ~ccomplish most Of HRC’s goals with relatively, minor
modifications of the existing provisions of the Palo Alto Municipal Code,
Proposed HRC Anti-discrimination Ordinance Page 16 of 20
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CONCLUSION
It appears that many, if not most, of the anti-discrimination provisions proposed
by the Palo Alto Human Relations Commission have been addressed and/or enacted in
various Legislative measures signed by the Governor in September, 1999, and due to go
into effect on January 1, 2000 To the extent that the Palo Alto Municipal Code requires
that contractors certify compliance, with all state and federal law, the Legislative
amendments will effectively amend the PAMC to incorporate many of these changes as
of January ~t; :2000/":.Since all employers (with certain exceptiofi.s) will be!required to
comply with the newrequirements under FEHA, the imposition of the new requirements
pursuant to contract will have little additional impact to the extent that they mirror the
FEHA requirements~ .To the_ extent that the City seeks to impose extraordinary
requirements not: contained in the amendments to FEHA, care shotild be ta.ken to avoid
potential preemption issues with respect tO federal law, and consideration should be-given
to adoption of appropriate exceptions and waiver provisions to allow the City maximum
flexibility inthe management of its contracts and real property agreements
CRM Number 381:99.
Curran v. Mt. Diablo Council of the Boy Scouts.of America (1998) 17 Cal.4~ 670, 681-82. It is
generally understood that local Scout Councils are required to adhere to the national policy of the Boy
Scouts of America. National policy does not expressly discriminate on the basis of sexual orientation, but
has been interpreted to deny’advancement or leadership roles to homosexual members.
I was unable to obtain a copy of the referenced Cook County ordinance.
4 Although the Unmh Act does not expressly include "familial status" in its list of
Protected categories, the California .Supreme Court has declared that the classifications in Civil
Code § 51 were not exclusive, but illustrative. Marina Point Ltd. v. Igolfson (1982) 30 Cal.3d
721,725 (holding that the exclusion of families with minor children from an apartment complex
otherwise open to the general public was impermissible). The Court noted that the Unml~ Act’s
"identification of particular bases of discrimination -- color, race, religion, ancestry and national
Proposed HRC Anti-discrimination.Ordinance Page 17 of 20
CONFIDENTIAL COMMUNICATION: ATTORNEY - CLIENT AND ATTORNEY WORK PRODUCT PRIVILEGE
origin -- [in the current version of the act].., is illustrative rather than restrictive." (Citing In re
Cox (1970) 3 Cal.3d 205, 216.)
5 See, generally, Air TransportAssociation ofAmerica, et aL, v. City and County of San Francisco,
e~al., 992 F.Supp 1149 (U.S.D.C. Notthern District 1998), granting in part and denyxng in part a challenge
to a 1996 amendment to Chapter 12B adding the category of domestic partners to the list of protected
.groups, and requiring contracting agencies to provide the same benefits to domestic parmers of employees
as provided to spouses.
Article 7 is referred to as the "Affirmative Action Contract Compliance Program of the City of
Hayward.
7. :’, In Roj’h..v. Klige~,-the issue was whether FEHA p/ovidd~" the excl~isive remedy for injuries
resulting from sex discrimination in employment, and the Supreme ’CoUrt concluded.that FEHA did not
supplant other itate laws relating to employment discrimination, and therefore .held that.an employee need
not exhaust the administrative process under the Act before seeking.judicial relief for nonstatutory causes
of action.
In Rolon v. Kulwitzky, plaintiffs were two lesbian women who brought an action against a
privately ownedrestaurant under the. Unruh Civil Rights Act for unlawM discritninafion when they, were
refused service in a semiprivate booth, and were offered service at a table.in the .main dining room. The
restaurant’s policy allowed seating in the booths only by persons of the opposite sex, two-men, or couples
¯ with children.
9
10
~.. LAMC C.hapter.IV,.article 12, Subdivision 1 of Section 49.74; .
Ptidntiff Roth was not a medical doctor, but a doctor of podiatric medicine.
Section 1 of AB 1001 states as follows:
It is the intent of the Legislature that the purpose of this act is to incorporate, in.the California Fair
Employment andHousing Act [...] the prohibition against discriminatior~ or diffeient treatment in any
aspect of employment or opportunity for employment based on sexual orientation, contained in Section
1102~1 of the LaborCode, as that section read on Decembe~ 31, 1.999. As was the intent of" Section 1102.1
of the Labor Code, as that section read on December 31, 1999, this act is intended to codify the court
decisions in Gay Law Students v. Pacific Telephone and Telegraph (1979) 24 Cal.3d 458 and Soroka v.
Dayton Hudson Corp. (1991) 235 Cal.App.3d 654, prohibiting discrimination based on sexual orientation.
Any conduct that wouldhave been a violation of Section 1102.1 of th~ Labor Code, as it read on December
!, 1999, shall be deemed a violation of this act. Nothing in this section is intended to alter the definition of
employer with regard to any bona fide scouting organization covered trader Section 1102.1 of the Labor
Code as it read on December 1, 1999. -
These "bona fide occupational qualifications" are often referred to by th~ acronym "BFOQ."
13 Volokh, The California Civil Rtghts Initiative: An Interpretive Guide, 44 UCLA L.Rev. 1335
(1997).
For example, Gov’t Code § 12955,6 provides as follows:
Nothing in this part shall be construed to afford to the classes protected, under this part, fewer rights or
remedies than thefederal Fair Housing Amendments Act of 1988 (P.L. 100-430) and its implementing
¯ regulations (24 C.F.R. !00.1 et seq.), or state law relating to f~ir employment and housing as it existed prior
to the effective date of this ~ection. Any state law that purports to require or permit any action that would
be an unlavdul practice under this part shall to that extent be invalid. This part may be construed to afford
greater rights and remedies to an aggrieved person than those afforded by federal law and other state laws.
Proposed I-t:RC Anti-discrimination Ordinance Page 18 0f20
CONFIDENTIAL COMMUNICATION: ATTORNEY - CLIENT AND ATTORNEY WORK I~RODUCT ~RIVILEGE
FEHA expressly incorporates .the American with Disabilities Act of 1990 only to the extent that
the ADA provides zreater protections to person~ with disabilities than FEHA. § 12926(1) provides:
(1) Notwithstanding subdivisions (i) and (k), if the definition of "disability" used in the Americans .with
Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of
individuals with a mental disability or physical disability, as defined in subdivision (i) or (k), or would
include any medical condition not included within those definitions, then that broader protection or
coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of,
the definitions in subdivisions (i) and (k).
AB 1077, Section 1 sta~es as follows:
It is the intent of the Legislature in enacting this act [amending Civil Code. § 51] to sl~engthen California
law ir~ a~daswhere it is::~Veaker than the Americans with Disabilities Act ,0f/1990 and t0’-tetain. California
law. when it provides more protection for individuals with disabiIities than the Americans with.Disabilities
Actor 1990: (AB 1077, Stats 1992,Chapter 913). .... "
992 F.Supp 1149 (1998). The Court concluded that the provisions~ of the Administrative Code
Were consistent with San Francisco’s "long history of taking a principled stand against discrimination based
ort sexual orientation," ~noting that the City of San Francisco had prohibited discriminatio..n on the basis of
sexual orientation, since 1972. The Court declared that the requirements would._-vi0tate .the dormant ~.-,-
Commerce Clause "ouly if the burdens it places on interstate commerce are clearly ~xcessivein relation to
the putative local benefits.". ~Id At 1164 - 65. Given San-Francisco’s long-.standing commitment to these
principles,.-the-Court- concluded-that..the-City’ s-"legitimate local- public interestS: justified the minor, burdens
imposed. However, the Court ruled that to the extent that the requir~ements .were. applied.to out-of, State
conduct;n.o.t.r.elated to the purposes of the City contract, they were impermis_si.bly extraterr!torial, (Id).
These bills includeAB 1001 (Villaraigosa); AB 1670 (Committee on Judiciary); AB 1541
(Keeley); SB 26 0Escutia); SB 211 (Solis); SB 1098 (Burton); SB 1148 (Burton); arid SB 382 (Haynes).
Many of these bills were "double jointed" and contained similarly worded amendments to FEHA, which
would go into effect depending on the date enacted. However, several of these, legislative items were
signed by the.Governor on the same date and subsequently.filed together with the Secretary. of State.
19 Section 12926(m), amended by AB i670.
Section 12940(h), amended by AB 1670.
Section 12941.1, amended by SB 26. This amendment was in response io a decision in Marks v.
Loral Corporation (1997) 57 Cal,App.4~ 30, which held that am employer could justify laying off older
employees if salary was the reason. :
Section 12920, 12955, and 12955.8, amended by SB 1001.
Section 12955, amended by SB 1098. Note that this only covers payments made directly to the
tenant, such as AFDC, bu~ would not apply to Section 8 housing assistance, which are paiddirectly to the
property owner or landlord~~ :~
This amendment affects CC § 51.5 and Gov’t Code §§ 12930 and 12948; AB 1670,:
It is my understanding that all of the Scout organizations mentioned operate pursuant to separate
lease agreements with the City of Palo Alto, but do not pay any compensation for their.use or occupancy of
City-owned facilities or land.
Curran .v, Mount Diablo Council of the Boy Scouts of America (1998) 17 Cal.4a.670; Randall v.
Orange County Council, ~oy Scouts of America (1998) 17 Cal,4~ 736, In Curran, a former Eagle Scout’s
application to become an assistant scoutmaster was denied when it was discovered he was a homosexual,
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In Randall, plaintiffs were prohibiting from continuing their membership and ad-vancing in the Cub Scouts
because of their failure or refusal to participate in religion-based elements of the scout program.
Labor Code § 1102.1. provides, in part, as follows:
(a) Sections 1101 and 1102 prohibit discrimination or different treatment in any aspect of
employment or opportunity for employment based on actual or perceived sexual orientation.
(b) For purposes of this section:
(1) "Employer" as used in this chapter includes any person regularly employing five or more
persons, or any person acting .as an agent of an employer, directly or indirectly, including the state or any
political Subdivision of the state.
(2) "Employer" as used in this chapter does not include a religious association or corporation not
organize¢ for private profit, whether incorporated as a religious or public benefit corp0r~ationI -
The Court in Delaney noted.that the Attorney General had issued.an:opinion.(69 Ops:Cal.At.ty.Gen
80 (1986) that existing Labor Code §§ lI01 and 1102 protected employees from discrimination on the
basis of undisclosed or suspected homosexual orientation. The Court further cited Assembly Bill No. 2601,
which added § 1102.1 to the Labor Code, noting that the Legislative intent was "to codify the court
decisions in Gay Law Students v. Pacific Telephone and Telegraph (1979) 24 Cal.3d 458, and Soroka v.
Dayton Hudson Corp. (1991) 235 Cal.App.3d 654:
’The federal court inAir Transport Assn. of America, supra, applied a balancing test between the
City’s lengthy commitment to similar anti-discrimJnatibn provisions, and the impact on interstate
commerce.--It-is-unclear-whether a-similar balancing test-would-se~we.to-uphbld similar reqmrements-where-
th_e history Of anti-discrimination legislation was not as compreliensive or otherwise documented.
It is my unde’rstanding that the City Manager, pursuant to City Council directive, is compiling a
list of all relevant discrimination provisions.
The specific steps to impose such requirements could be .developed along with development of the
actual ordinance.
Section 12926.
Section 12955(n), SB 1098. For example, if the tenant’s share of the rein is $150.00 and the
balance is paid by a subsidy, the landlord can only use a standard based on the tenant’s $150.00 share. If
the total rein is $250.00 per month, the application of the standard "triple-rent" income standard would be
$450.00, not $750.00.
34 Section 12955(m), SB 1098.
See, generally, San Francisco Administrative Code Chapter 12B.
Proposed HRC Anti-discrimination Ordinance Page 20 of 20
City of Pa] o Ako7
C ty M,a ager! Report
TO:HONO~LE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: COMMUNITY SERVICES
DATE:
SUBJECT:
NOVEMBER 8, 1999 CMR: 381:99
m AN m LATIONS COMMISSION P O OSE ,A TI-
DISCRIMINATION ORDINANCEREQUEST
RECO~NDATION =
Staff is forwarding the City of Palo Alto’s Human Relations Commission’s (HRC) request that
the Palo Alto City Council adopt an anti-discrimination ordinance in prin~cipal as outliner in the
enclosed policy ..statement and instruct the City Attorney to dr~ifl a detailed ordinance for Council
consideration and enactment. The.City Attorney recommends that the City C.o.uncil also request.
¯ a’staffan)alysis of existing City anti-discrimination policies and,.a legal., analysis ofthe~proposed
ordinance.
BACKGROUND - " "
The proposed anti-discrimination ordinance developed from a discussion of the City Council
regarding the B_qy Sc.Q_Ut issue during the Fall of 1998. The HRC created a sub-committee to
research what other cities were doing about anti-discrimination issues: The sub-committee.
reviewed ordinances from the cities of Berkeley, San Francisco and Cook Coun.t.y..~, ~.l..i.inois.. In
comparing these ordinances to the City of Palo Alto, the sub-c0mmittee members noted that the
City of Pato Alto had little in the Municipal Code regarding discrimination and rental contracts.
The sub-committee prepared an outline of a draft ordinance and presented it to the HRC. The
HRC reviewedand approved the subcommittee’s recommended ordinance policy statement in
January 1999. The HRC held a public hearing to obtain punic comments on. the.proposed
ordinance outline on May 13, 1999. The minutes of the hearing are attachedl Many people
supported {he proposed ordinance stating that.the ordinance would serve as a reminder that Palo
Alto is a community that will not tolerate discrimination. One member of the public questioned
whether this Ordinance was the correct approach to housing discrimination, stating, that state taw
addresses the issues involved ’with housing discrimination and preempts any local regulation.
Some people spoke against the ordinance because it would negatively impact the Boy Scouts;
stating that the organization.could lose the use of the Lucie Stem facilities as well as other city
owned facilities.
As a result of the forum, the HRC revised the policy statement to incorporate a number of the
public’s suggestions, On June 10, 1999, the HRC unanimously approved a revised version of the
proposed ordinance policy statement which refined some potential exceptions to the ordinance.
and provided additional details on protected groups and enforcement provisions.
C~R:381:99 " Page I of 2
City Manager, City Attorney
From:Human Relations Commission
Date:June 21, 1999
Su,bi ect:OUTLlrNE OF PROPOSED PALO ALTO ANTI-DISCRIMINATION
ORDINANCE
Here is .an outline of the proposed PMo Alto Anti-Discrimination Ordinance as approved
atthe June 10, 1999 HRC meeting, -
Statement of Policy
The ordinance should contain a statement of policy. We suggest the following:
It is the policy of the Cityof Palo Alto to affirm and support and protect the rights of
eve~ person, within its jurisdiction toequal eoonomic, pglitical and .educational
opportunity, to equal accommodations in all business establishments in.the.. City and to
equal service and protection by all publicagencies of the City ....
II,Defin.itioniPrgtected Groups
T.he ordin~ce shouldhave a list of categories upon which disdrimination will be made
unlawful. Each c.ategory sfiould have a legal definition. Our suggestion for. the 9ategories is.as
follows:
B.
C,
D.
E,
F,
G.
H.
Race;
Color;
Gender;
Age;
Religion;
Disability (to be defined as in state
and federal laws);
National Origin;
Ancestry;
Sexual Orientation;
Housing status (to be defined’
similarly to Cook County ordinance,
to pr,dtect renters, residents of
subsidized housing,, and persons who
are currently unhoused);
Marital status,
Familial status (families with
children)
III,Scope of Coverage
The ordinance should cover the foilowing topics:
A, Employment by the City of Palo Alto;
IV
Contractors for the City of PaIo Ako will be required by contract not to
discriminate in employment against the protected groups;
Parties receiving .funding, subsidies or in kind contributions from the City of Palo
Alto will be required to agree n6t to discriminate against t.he protected groups;
Parties leasing property from the Ci.ty of Palo Alto for a period of morethan 29
consecutive days will be required to agree not to discriminate against the
protected groups; _
All City subsidized housing shall not discriminate against the protected groups,
except in the case of legitimate senior or disabled housing project;
The City shall not discriminate against any of the protected groups ,in-the
provision of any City program, facility or event.
Enforcement: The usual enforcement provisions applicable to other City ar:dinances such
as the admiaistrative penalties found in the Palo Alto Municipal Code section 1.12
and 1.18,
IV
Enforcement provisions should also include the foll0wing:
Violation of:the ordinance may be a cause of digciplineap to a~d including
d!scharge aga!nst City employees who violate the ordinance..;:
City .contractors who violate the ordinance may be barred from further contracting
with the City for a designated period (i.e,, one year);
The City shall have the right to terminate any and all leases if the lessee violates
the ordinance,
Violationsby recipients of subsidies may result in termination of subsidies,
.Responsibility for enforcement of the ordinance be placed on all departmentheads
with respect to activities under their control and that the City.Manager and Human
Relations Commission ~hould be given authority to investigate alleged violations
with the City Manager being given the ultimate authority to determine penalties
Exe,eptions:
Housing set aside for seniors and the disabied .is exempted from the age discrimination
provision;
No Groups that provi.de recreational services to minors may restrict participati.on by age
and gender;
C.Employment of family members shall not be construed as emplo-yment discrimination;
Do Non-profit sheltered workshops and similar rehabilitation services for the blind or
disabled shall be authorized to restrict employn~ent to the communities they serve;
2
Employers may discriminate on the basis of bona fide occupational qualifications as
defined under federal law;
A legitimate seniority system in employment, as defined under federal law shall not be
considered discriminatory;
This law shall not prohibit residential landlords from requiring the same financial
obligations of all’tenants,
Documont
Sec. 1 lB.’.’-’_.
Sec,
Sec, i ;!..1.? 4
Sec.!
All Contracts and Property Contracts to Include
Nondiscrimination Provisions; Definitions.
Nondiscrimination Provisions.
Human Rights Commission Empowered.
Nondiscrimination Guidelines.
Chapter Applies Only tO Discriminatory Employment
Practices.
Nonapplicability, Exceptions and Waivers.
Severability.
SEC, 12B.1. ALL CONTRACTS AND PROPERTY CONTRACTS TO INCLUDE NONDISCRINII2NATION
PROVISIONS; DEFENITIONS. .
1 of 3
(a) All contracting agencies of the City, or any department thereof, acting foro~ on behalf of the
City and County,: shall include in all contracts and property contracts hgreinaffer ex~ecuted or amended in
any manner or as to any portion thereof, a provision obligating the contractor not to_discriminate on the
basis of the fact or perception of a person’s race, color, creed, religion, n~tion~l Origin, ancestry, age, Sex,
sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune
Deficiency Syndrome, HIV status (AIDS/t-IIV status), association with members of classess protected
under this chapter or in retaliation’for opposition to any practice~ forbidden undm: this chapter against any
employee of, any City employee working with, or applicant for employment with Such contractor and shall
require such contractor to include a similar provision in allsubcontracts executed~0r amended thereunder.
(b) " No contracting agency of the City, or any department thereof, acting for or on behalf0fthe
City and County, shall execute or amend any contract or property contract with any contractor that
discriminates m the provision of bereavement leave, family medical leave,, health benefits, membership or
membership discounts, moving expenses, pension and retirement benefits or travel benefits as well as any
benefits other than bereavement leave, family medical leave, health benefits, membership or membership
discounts, moving expenses, pension and retirement benefits or travel benefits between employees with
domestic partners and employees With spouses, and/0r between tl~e domestic partners and spouses of such
employees, where the domestic partnership has been registered With a governmental entity pursuant to
State or local law authorizing such registration, subject to the following conditions. In the event that the
contractor’s actual cost of pro’riding a certmn benefit for the domestic partner of an employee exceeds that
of providing it for the spouse of an employee, or the contractor’s actual Cost of providing a certain benefit
for the spouse of an employee exceeds that of providing it for the domestic partner of an employee, the
contractor shall no:t be deemed to discriminate in the provision of benefits if the contractor conditions.
providing such benefit upon the employee agreeing to pay the excess costs. In addition, in the event a
contractor is unable to provide a certain benefit, despite takingreasonable measures to do so, the
contractor shall not be deemed to discriminate in the provision of benefits if the contractor provides the
employee with a cash equivalent.(c) Definitions. As used in this.Chapter the following words and phrases shall have the meanings
¯ indicatedherein: ’"Age" shall mean the age of any employee or applicant for employment who has attained the age of
40 years and has not attained the ag.e of 65 years. For the purposes of this Chapter, discrimination because
of age shall mean dismissal from employment of, or refusal to employ or rehire any person because of his
or her age, if such person has attained the age of 40 years and has not attained the age of 65 years, if the
person is physically able and mentally competent to perform the services required. Age limitations of
apprenticeship programs in which the State or its political subdivisions participate shall not be considered
discriminatory within the meaning of this Chapter.
"Amend’~ shall mean to substantively change.the terms of a pre-existing contract, and shall not
include amendments to decrease the scope of work or the amount to be paid under a contract
Construction change orders shall not be construed as contract amendments for the purposes of this
Chapter.
"City" shall mean the City and County of San Francisco.
"Commission" shall mean the Human Rights Commission of.the.City and County of San Francisqo.
"Contract" shall mean an agreement for public works or improvements to be performed, or fox goods
or services: to be purchased dr grant~ to be provided, at the expense, o.f the Ci:t31~Dd Cou. ~nty or to be paid
out of moneys deposit~d in the t~’easury or out of trust moneys under :~he controt ~o~ .olle~cted. by. the City
andCounty; and does not include property contracts, agreements entered into after, June 1, 1997 pursuant
to settlement of legal proceedings, contracts for urgent litigation expenses, or contracts for a cumulative
amount of $5,000 or less per vendor in each fiscal year. .
"Contractor" means any person or persons, firm, partnership, corporation, or combination thereof,
who enters iatoa cdn(ract or property.contract with a department head or.o .~¢~.r empow.ered by.law to
enter into contrac~so’r’PrdpertY c0ntr~ts on the part ofthe~City and.C0unty:. ~.~ .. .... .i.~I ~. ¯
,,Director shall mean th,e D~rector of the Human Rights Commission. , .. : " ...
...Disabiiity~’ shall megna~ physical or mental impairment which(substantially limits one ormore major
life activities, or a rec~,rd Of Such an impairment.
"Domestic partner" shall mean any person who has a currently registered domestic partnership ~dtha
governmental-body pursuant to State or local law authorizing such registra.tma, "
"Gender identity" shall mean a person’s Various individual attributes as they are Understood to be
masculine and/or feminine.
"Property contract" shall mean a written agreement for th~ exclusive use or occupancy Of real
property for a tm-m exceeding 29 days in any calendar year, whether by singular Or cumulative instrument,
(i) for the operation dt Use by others of real property owned or Controlled. by the City for the operation of a
business, Social, or other establishment or organization, including leases, concessions,, franchises and
easements, or (ii) for the City’suse Or occupancy of real property owned by others, including leases,
concessions, franchises and easements. For the purposes of.this Chapter, "exclusive use" means the right
to use or occupy real property to the exclusion 0f others, other,than the rights reserved by the fee owner.
"Property contract" shall not include a revocable at-will use oi encroachment permit for the use of or
ei-tcroaehment, on City property regardless of.the ultimate duration of Such permit, except that i"property.
contract" shall include such permits granted to a private enti,ty for the use of City property for the purpose
of a for-profit activity. "Property contract" shall also not include street excavation, street construction or
street use permits, agreements.for the use of City right-of-way where a contracting utility has the power of
eminent domain, or agreements governing the use of City property which constitutes a public forum fbr
activities that are primarily for the purpose of espousing or advocating causes or ideas and that are
generally recognized as protected by the First Amendment to the U.S. Constitution,. or which are primarily
recreational in nature.
"Qualified disabled employee" shall.mean a person able to perform the essential functions of a job
with reasonable accommodation.
"Sex" Shall mean the character of being male or female.
"Sexual orientation" shall mean the status of being lesbian, gay, bisexual or heterosexual.
"Subcontract" shall mean an agreement to (i) provide goods and/or services, including construction
labor, materials or equipment, to a contractor, if such goods or services are procured or used in the
fulfillment of the contractor’s obligations arising from a contract with the City, or (ii) to transfer the right
to occupy or use all Or a portion of a real property interest subject to a property contract to a subcontractor
12/9/99 5:12 Ph
and pursuant to which the contractor remains obligated under the property contract.
"Subcontracto)" means any person or persons, firm, partnership, corporation or any combination
thereof, who enters into a subcontract with a contractor. Such term shall include any person or entity who
enters into an agreement with any subcontractor for the performance of 10 percent or more of any
subcontract.
(d) The requirements of this Chapter shall apply to (i) any of a contractor’s operations within San
Francisco; (ii) a contractor’s operations on real property outside of San Francisco owned by the City or
which the City has a right to occupy if the contractor’s presence at that location is connected to a contract
or property contract with the City; (iii) where the work is being performed by a contractor for the City
within the United States; and (iv) any of a contractor’s operations elsewhere within the United States.
(Amended by Ord. 489-86, App, 12/18/86; Ord. 433-94, App. 12/30/94; Ord. 215-96, App 5/30/96; Ord.
440-96, App. 11/8/96; Ord. 481-96, App, 12/20/96; Ord. 201-97, App. 5/27/97; Ord, 286-97, App.
7/18/97; Ord, 255-99, File No. 991146, App. 10/8/99) ...... i. .
SEC. 12B.2. NONI)ISCRIMINATION PROVISIONS.
Every. c0ntractand property, contract for or on behalf of the City shall incbrporate by reference and
require the contractor t~o comply with the provisions of Section 12B.2. In addition,_Ml contractors must
incorporate by referenc’e in all subcontracts and require subcontractors to 9omply with the requirements
set forth in Sections 12B.2(a) and 12B.2(c) through 12B.2(k), and failure to.do so shall Constitute a
materla[ breach of contract.
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In the performance of a contract the contractor agrees as follows:
(a) The contractor or subcontractor will no’c discriminate against any ~mployee, City and County
employee working with such contractor or subcontractor, or applicant for employment with such
contractor or subcontractor on the basis of the fact or perception of that person’s race, color, religion,
ancestry, national origin, age, sex, sexual orientation, gender identity, domestic partner status, marital
status, disability, AIDS/Hrv status, or association with members of classes protected under this chapter or
in retaliation for opposition to any practices forbidden under this chapter. Discrimination on the basis of
sex includes sexual harassment as defined in Section 16.9-25(b) of this Code,. The contractor or
subcontractor will take action to ensure that applicants are employedl and that employees are treated
equally during employment, without regard to the fact or perception of their race, color, creed, religion,
ancestry, national origin, age, sex, .sexual orientation, gender identity, domestic partner status, marital
status, disability or AIDS/I-IIV status. Such action shall include, but not.be limited to, the following:
Employment,’ upgrading, demotmn or transfer; recruitment or~recruitment-advertising; layoff or
termination; rate:of pay 0r other forms of compensation; .and selection for~.tr_.ami.ng, includ ing
.apprenticeship. Nothing in this Chapter shall require or prohibit the establishment of new classifications
of employees in any given craft. The provisions of this Section with respect to age shall not apply to (1)
terrmnation of employment because of the terms or conditions of any bona fide retirement or pension plan,
(2) operation of the terms or conditions of any bona fide retirement or pension plan which has the effect of
a minimum service requirement, and (3) operation of the terms or conditions of any bona fide group or
insurance plan. The contractor or subcontractor agrees to post in conspicuous places, available to
employees and applicants for employment, notices in such’form and content as shall be furnished or
approved by the awarding authority setting forth the provisions of this Section. ~.. .~ -
(b) The prime contractor shall state that the prime contractor does.no.t, and will not during the
term of.the contract discriminate in the provision of bereavement leave, family medical leave, health
benefits, membership or membership discounts, moving expenses, penslon and retirement benefits or
travel benefits as well as any benefits other than bereavement leav.e, family medical leave, health benefits,
membership or membership discounts, moving expenses, ,pension and retirement benefits or travel
benefits between employees witi~ domestic partners and employees with spouses, and/or between the
domestic parmers and spouses of such employees, where:the domestic partnership has been registered
with a governmental entity pursuant to State or local law authorizing suGh registration, subject to the
following conditions. In the event that the contractor’s actual cost of providing a certain benefit for the
domestic partner of an employee exceeds that of providing it for the spouse of an employee, or the
contractor’s actual cost of providing a certain benefit for the spouse of an employee exceeds that of
providing it for the domestic partner of an employee, the contractor shall not be deemed to discriminate in
the provision of benefits if the contractor conditions providing such benefit upon the employee agreeing
to pay the excess costs. Inaddition, in the event a contractor is unable to.provide acer~ain benefit, despite
taking reasonable measures to do so, the contractor shall not be deemed to discriminate in the prowsion of
benefits if the contractor provides the employee with a cash equivalent. The Director shall be the final
arbiter of a contractor’s or property contractor’s compliance or substantial compliance with this Chapter
and the Director’s determination shall not be appealable to the Commission. Contractors shall treat as
confidential to the maximum extent allowed by law or the i-equiremen~s of contractor’s insurance provider
any request by an employee or applicant for employment for, domestic partner or spousal benefits or any
documentation of eligibility for domestic partner dr spousal benefits submitted by an employee or
applicant for employment.
In adopting this Section 12B.2(b), the intent of the Board of Supervisors is to equalizeto the
maximum extent legally permitted the total compensation between similarly situated employees with
spouses and employees with domestic partners.
In particular, consistent with the severability clause set forth in Section 12B.6 below, the Board of
Supervisors intends that ifacourt or agency Of competent jurisdiction finds that a State or federal law, rule
or regulation invalidates (1) the application of this Section to any business, person, type of compensation
or benefit, or location; or (2) any other requirement of this Section, then the court or agency should sever
12/9/99 5:12 PM
the invalid clause and leave in effect the remainder of this Section.
(c) The contractor or subcontractor shall provide reasonable accommodation for qualified
disabled applicants for employment and for qualified disabled employees. Said contractor or subcontractor
need not provide reasonable accommodation if such would present an undue hardship An undue hardship
may include but not be limited to more than a de minimus cost, violation of the seniority rights of other
co- workers as established by a bona fide seniority system, or a health or safety risk to the employee or co-
employees. The burden of establishing an undue hardship rests on the employer.
(d) The contractor or subcontractor will in all solicitations or advertisements for employees
placed by or on his or her behalf, state thatqualified applicants will receive consideration for employment
without regard to the fact or perception of their race, creed, religion, color, ancestry, national origin, age,
sex, sexual orientation; gender identity, domestic partner status, marital.status, disability or AIDS/I-IIV
status. - ’ ’
(e) .~ The contr.actoi~ or subcontractor will send to each labor,union or [e.presentative of workers
with which he or sh~ has a collective bargaining agreement or. other agreement dr. underst.anding, a notice,
in such form and content as shall be furnished or approved by the awarding authority, advising the said
labor union or workers’ representative of the contractor’s .or subcontractor’s commltments under this
¯ Section, and.shall post copies of the notice in conspicuous places available.t0.emp!0yees and applicants
for employment.
¯ (f) The cont’ra~tor or subcontractor will permit access to its records 0f.,e.mployment, employment
advertisements, appii~ation forms, and’rdther pertinent data and records by the Commissi0n, the- City’s
awarding aui~h0rity 6r ~he Fair Employmentand Housing Commission~. for the purposes of in\,estigation to
ascertain compliance with the nondiscrimination provisions of this Chapter, and upon.requestshall
provid~ evidence that the .contractor has complied or will comply with the nondiscrimination prowsions
of this Chapter.
-(g) A contractor or subcontractor.shall be deemed to have br~.ched the nondiscrimination .
provisions of this Chapter upon:
(1) A finding by the Director or such other official who may be designated by the Commission,
that the coN:ractor or subcontractor has wilfully violated such nondiscriminatfon provisions; or
(2) A finding by the California Fair Employment and Housing Commission that a contractor or
subcontractor has violated any provision of the California Fair Employment a~d Housing Act or the
nondiscrimination provisions of this Chapter, provided that the California Fair Employment and Housing
Commission has issued a final order pursuant to Section 12970 of the Government Code, or has obtained
a judgment and order enforcing the final order pursuant to Section 12973 of the Government Code;
provided further, that for the purposes of these provisions, an order or injunction shall not be considered
final during the period within which (1) appeal may be taken, or (2) the same has been stayed by order of
court,, or (3) further proceedings for vacation, reversal or modification are in progress before a competent
administrative or judicial tribunal.
(3) Upon such finding by the Director or other Official. designated by the Commission, or the
California Fair Employment and Housing Commission, the awarding authority shall notify the contractor
or subcontractor that unless the contractor or subcontractor demonstrates to the satisfaction of the Director
or other official designated by the Commission, within such reasonable period, as ~he Commission shall
determine, that the 9iolation has been corrected, actmn will be taken as set forth in Subparagraphs (h) and
(i) hereof.
(4) The Commission shall, within 10 days of the date of issuance of any finding by the Director
or other official designated by the Commission for the enforcement of this Chapter, mail to any person or
persons affected by said finding, a copy of said finding, together with written notice of the right to appeal
such finding. Notice of appeal must befiled in writing with the Chairperson of the Commission within 20
days of the date of mailing said copy and notice.
(5) F~r purpose of appeal proceedings under this Section, a quorum shall consist of eight
members of the Commission. The vote of the majority of the .full Commission shall be necessary to affirm,
reverse or modify such decisions, order or other action rendered hereunder. Sh0uld.a member of the
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Commission be designated under Section 12B.2(g)(1) of this Chapter, that Commissioner may not
participate in an appeal under this Section except as a witness.
(6) The presiding oB.qcer of the Commission shall have the power to administer oaths to
witnesses in appeals before the Commission under this Section. In the event that any person shall fail or
refuse to appear as a witness in any such proceeding after being requested to do so, and if it shall appear to
the Commission that his or her testimony, or books, records, documents or other things under his or her
control are mater~al and relevant as evidence in the matter under consideration by the Commission in the
proceeding, the presiding oiT~cer of the Commission may subpoena such person, requiring his or her
presence at the proceeding, and requiring him or her to bring such books, records, documentsor other
things under his or her contro!.
(7) " All appeals to the Commission shall be open to the public. Recordi and minutes shall be kept
of such proceedings and shall be .open to public inspection. Upon reaching a decision in any appeal, the
Commission shall gi~iewri~ttgn notice thereof to the Director or otger offici.al~ designated by the
Commission, and th~ appellar{i or appellants. The decision of the C.o_ mmis~i.~n._s.halt befinal unless Within
15 days of the filing, and seD’ice of written notice thereof appropriate legal proceedings are filed in a cou~t
of competent jurisdiction by any party to the contract, property contract or subcontract.
(8) If any contractor or subcontractor shall fail to appear at an appeal proceeding of the
Commission after having been given written notice to appear, such failure to appear shall be grounds for
termination of the Contract, property contract or subcontract, and such con_t.ra~tor Or subcontractor shall be
deemed to have forfeited all rights, b~nefits and privileges thereunder.
(9) ’ TheComm~ssion shall promulgate rules and regulations for the.implementation.of the
nondis-cfimination provi.~iofls of this Chapter. . .:,.- " -"~
¯ (h) ’ The aw},rding authority may deduct from the amount payable tothe, contractor or
subcontr~ctor.byt!{e City under any contract or property contract ,subject to this Chapter, or may impose
upon the c6ntractor or subcontractor, a penalty of $50 for each person for each calendar day during which
such person was discriminated against in wolation of the provisions of this Chapter. In addition to any
other penalties provided for the violation of the nondiscrimination provisio.ns of this Chapter or for the
failure of any contractor or subcontractor tO abide by the rules and regulations of the Commission, the
contract, property 0ntract Or subcontract may be terminated or suspended, in:Whole or in part, by the
awarding authorityupon the basis of a finding as set forth in Section. 12B.2(g) that the contractor has
discriminated contrary to the provisions of this Chapter, and all moneys due o, to become due hereunder
may be forfeited to, and retained by, the City.
(i) A breach of the nondiscrimination provisions in the performance of a contract, property
contract or subcontract shall be deemed by the City to be material breach of contract and the basis for
determination by the awarding authority that the contractor or subcontractor is an irresponsible bidder as
to all future contracts or. property contracts for which such contractor or subcontractor may. submit bids.
Such contractor or subcontractor shall not for a period of.up to two years thereafter, or until it shall
establish and carry out.a program in conformity with the nondiscrimination provisions of this Chapter, be
allowed to act as a contractor or subcontractor under any contract or property contract.
(j) Nothing contained in. this Chapter shall be construed in any manner so as to prevent the City
frompursuing any other remedies that may be available at taw, equity or underany contract or property
contract.
(k) The contractor or subcontractor will meet the following standards for compliance:
(1) If the contractor or subcontractor has been held to be an irresponsible bidder under Section
12B.2(i) hereof, the contractor or subcontractor shall furnish evidence that it has established and ~s
carrying out a program in conformity with the nondiscrimination provismns of this Chapter.
(2) The contractor or subcontractor may be required to file with the Commission a basic
compliance report, which may be a copy of the federal EEO-1, or a more detailed report as determined by
the Commission. Wilful false statements made in such repdrts shall be punishable as, provided by law. No
contractor or subcontractor shall be held in noncompliance for not filing such ~i report with the
Commission unless it has-been specifically required to do so in writing by the Commission.
~2/9/99 5:12
(3) Personally, or through its representatives, the contractor or subcontractor shall, through ~
negotiations with the unions with whom it has collective bargaining or other agreements requiring the
contractor or subcontractor to obtain or clear its employees through the union, or when the contractor or
subcontractor otherwise uses a union as an employment resource, attempt to develop an agreement which
will: (A)Define and outline responsibilities for nondiscrimination in hiring, referral, upgrading and
training;
(B) Otherwise implement a nondiscrimination program in terms of the unions’ specific areas of
skill and geography, such as an apprenticeship program, to the end that minority workers will be available
and given an equal opportunity for employment.
(4) .The contractor or subcontractor shall notify the awarding authority of..opposition to the
nondiscrimination provisions, of a contract by individuals, firms or or.ganizations during the term of the
contract. (Amended b-y.!Ord[ 489-86, App, 12/18/86; Ord. 84-87, Ap~. 3/20/87; Ord. 433-94, App.
12/30/94; O?d. 215-96¢app 5/30/96; Ord. 440-96, App. 11/8/96; Ord. 481-96; App. !2/20/96; Ord.
201-97, App. 5127197; oral. 286-97, App, 7/18/97; Ord. 255299, i~ild i%;’.9.~1 ~)~6,Xpp 1018199)
SEC. 12B.3. Hu MAN lllkiti.l S I:~lviMt~iuN EMPOWERED.
The San Francisco Human Rights-Commissmn, its presiding officer and its director, arehereby
granted the power to. doall acts and exercise all powers referred tO iflSection i~2B.2 hereof. (Addg0 by
Ord.: 261-66,.App. 1.0/2.1/66) - .o., ’ - - ...................
~SEC. 1213.4.. NONDISCRIiNI[NATION GUIDELINES.
The following nondiscrimination guidelines shall apply to all contracts and property contracts subject
to this Chapter.
In order to.:be el.igible to submit a bid or proposal or to have a bid or proposal considered by the
awarding authority, the prospective contractor shall agree to abide by. a n ondiScrimination program which
conforms to the requirements of the Commission.The Commission may also require contractors and subcontractors to take part in a pre-bid orpre-
~iward conference in order to develop, improve or implement a qualifying nondiscrimination program.
(a) Nondiscrimination programs developed pursuant to this Section shall be effective for a period
of 12 months from the date of approval by the Corrimiss~on. Contractors or subcontractors who are
members in good standing of-a trade association which has negotiated a nondiscrimination program with
the Commission may-make this associatmn program their Commitment for the specificcontract or proper~y
contract upon approval of the Commission without the process of a separate pi-e-bid or pre-award
conference. Such an association agreement shall be effective for a period ofl 2 months from the date of
approval by the Commission. Trade associations shall provide the Commiss[0n with a list of members in
good standing in such association. The Commission shall annually supply contracting agencies of the City
and County with a list of contractors and subcontractors who have developed ap~’oved nondiscrimination
programs.
(b) The awarding authority shall be responsible for notifying all prospective bidders or proposers
of the requirements of this Section and, when requested by the Commission, for notifying the Commission
of each contract or property contract which is being proposed to be put to public bid.
(c) The proposed nondiscrimination program described by this Section, and the pre-bid or pre-
award conference which may be required by the Commission, shall, without limitatmn as to the subject or
nature of employment activity, be concerned with such employment practices as:
(1) Apprenticeship where approved programs are functioning, and other on-the-job training for
nonapprenticeable occupatmns;
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1219/99 5:13 I
(2)Classroom preparation for the job when not apprenticeable;
(3)Pro-apprenticeship education and preparation;
(4)Upgrading training and opportunities;
(5)Encouraging the use of contractors and subcontractors of all ethnic groups, provided,
however, that any contract or property contract subject to this Chapter shall require the contractor
subcontractor to provide not less than the prevailing wage, working conditions, and practices get, orally
observed in private industries in the.City for such work; and
(6) The entry of qualified minorityjourneypersons into the industry.
(d) ’Nondiscrimination agreements resulting from the proposed nondiscnminatmn programs or
the pro-bid or pro-award conferences shall not be confidential and may be publicized by the Commission
at its discretion In addition, the Commission may.report to the.Board of Supervisors, either or~ request of
theBoard oron its own initiative, on the progress or the problems whichattend the implementation of
these~agreemetits 6r:"ad}" other aspect of enforcement ofthis~Chapter.~:
(e) Any:job training or education program using the funds, fa..c.ilities; orstaffof the City wl)ich,
the judgment of the Board of Supervisors or the Commission, can make a contribution to the
implementation of.this Chapter shall submit reports to the Commissionas requested and shall be required
to cooperate with the contractors, subcontractors and unions and with the Commission for the effectuation
of the nondiscrimination programs developed under this Chapter. (Amended by Ord. 498-75,.App. 1/5/75;
Ord. 201-97,-App. 5/27/97’, Ord. 286-97, App, 7/18/97)
SEC. 12B.5. CHAPTER APPLIES ONLY TO DISCRIMINATORY EMPLOYMENT PRACTICES.
.(a) This Chapter shall not confer upon the City and County o£San Francisco or any agency, board
or commission thereof any power not otherwise provided by law to determine the legality of any existing
collective bargaimng agreement and shall have application only to discriminatory employment p~:actices.
by contractQrs or subcontractors engaged in the performance of City and .County contracts or property
contracts.
(b) - The Board of Supervisors shall appropriate such :funds from the General Fund .of the City,
subject to .b~adgetary and fiscal provisions of the Charter, as it may deem necessary for the enforcement of
this Chapter. (Amended by Ord. 340-68, App. 12/6/68; Ord. 201-97, App, 5/27/97)
SEC. 12B.5-1. NONAPPLICABILITY~ EXCEPTIONS AND WAIVERS.
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12/9/99 5:13 PM
(a)The Director shall waive the requirement~ of this Chapter under the following circumstances:
(1)Whenever the Director finds, upon the advice of the awarding authority, that there is only one
prospective contractor willing to enter into a property contract with the City for use of City property on
the terms and conditions established by the City, or that the needed goods, services, construction services
for a public work or improvement, or interest in or right to use reaI property are available only from a sole
source and the prospective contractor is not currently disqualified from doing business w~th the City, or
from doing business with any governmental agency based on any contract compliance requirements;
(2) If the contracting department, board or commission certifies in writing to the Director that
pursuant to Administrative Code Sections 6.30 or 21.25 the contract or property contract is necessary to
respond to an emergency which endangers the public health or safety and no entity which complies with
the requirements of’this Chapter capable of responding to .the ,emer~gen..cy is immediately available;
provided tl~at such certification must be made prior to the Controller’s coatract certification;
. (3) ~.~ Where .th~ City’ A~t, torney certifies in writing to the Dir.e~ctor that the cont, ract involves
spe~ialize~t~ iitigati6n r~quirements such that it would be in thg bei’[.inte~ests~0~the Cit)to waive the
requirements of this Chapter..
(b) This Chapter shall not apply where the prospective contractor is a public entity and the
Director finds that goods, services, construction services for a l?ublic work dr improvemeat or interest
or right to use real property of comparable quali.ty or accessibility a~ are available under the proposed
contract or property c.ontract are not available f~’om another source, or that the prdpose~t contract or
property contract is necessary to ser~"a substantial public interest. .. -~ ’
(c) This Chapter Shall not.apply where the contrac_ting officer.finds tl~at the reqmrem~ints Of this
Chapter Will Violate or are inconsistent with the terms or conditio.ns of algrant, subv~ention or agreement
with a public agency or the instructions of an authorized representative of any such agency with respect to
any such grant, subvention or agreement, lxovided that the c~ntractmg offic.er..:.~has made a good ’faith
- attempt t0 ctiange the terms or conditions of any such grant, subven’~-iori or agreement to authorize
application of this C~hapter.
(d) Upon the request of a potential contractor or upon the contracting officer’s own initiative,
after taking all reasonable measures to find an entity that complies with the law, the contracting officer
may waive any or ~11 of’the requiremer~ts of this Chapter for any contract, property contract Or bid package
advertised and made available to the publici or any competitive or seale~i bids receivedby the City as of
the date of the enactment of this ordinance under the following c~rcumstances:
(1) Where the contracting officer determines that there are no qualified responsive bidders or
prospective Contractors who could be certified by the Commission as being in compliance with the
requirements ofthis Chapter and that the contract or prdperty contract is for goods, a service or a project
that is essential to the City or City residents; or.the contractin officer determines that transactions entered into pursuant to bulk
purc~2a~mg arWrahne~eements through~ederal, State or reglonal entities which actually reducethe City’s
purchasing costs would be in the best interests of the City; or
(3) Where the contracting officer determines that the requirements of this Chapter would result ~n
the City’s entering into.a contract with an.entity that was set up, or is being used, for the purpose of
evading the intent oftl~is Chapter, which is to prohibit the City from entering m~0 contracts with entit~es
that discriminate based on the criteria set forth in this Chapter;
. (4) ~he waiver authority granted tO contracting officers in this Section 12B.5-1 (d) shall be
subj ect to the requirements that:
(i) All proposed waivers must be submitted to the Director and tt~e Clerk of the Board of
Supervisors. All proposed waivers must set forth the reasons the contracting office~ is requesting the
waiver, what steps were taken to find an entity that complies with this Chapter and why the waiver does
not defeat the intent of this Chapter, which is to prohibit the City from entering into contracts with entities
that discriminate based on the criteria set forth in this Chapter. Such waivers shall be subject to the prior
approval of the Director, who shaIl take action approving or denying a proposed waiver within 30 days of
receiving a notification of a proposed waiver from a contracting officer. If after 30 days the Director has
t of 3.
12/9/99 5:14 P
taken no action on the proposed waiver, the waiver shall be deemed approved. The Clerk of the Board
Supervisors shall list the notice of the proposed waiver at the rear of the next available Board agenda, and
(ii) Contracting officers report to the Director whenever such a waiver is granted within five days
of granting the waiver, and
(iii) For any contract subject to approval by the Board, the contracting officer shall state in the
approving resolution whether any waiver under this Section 12B.5-1 (d) has been or is proposed to be
granted for that contract, and
(iv) The Director shall conduct quarterly comprehensive reviews of the use of the waiver
authority by departments and shall make a report tothe Board of Supervisors. Contracting offmers who
have exercised waiver authority under this Section 12B.5-1 (d) in the previous quarter must appear before a
Board~ of Supervisors committee and report on their use 0f, such.w~aiver authority. If the Board finds abuse
of waiver authority by a department under this Section 12B,5-1 (d), either.as a result of a report of the
Direct~ar or Upon.its own ii-iitiative, the Board may by resolution, transfer t.hat Waive#.authority for that
,department to the.Direct0r:, to be exercised by the Director ~apo~ recommei~.dation~ o..f the. contracting¯
officer u, nder any. oral! of’the circumstances enumerated in this Section 1 ~2B. 5’!(d);
(.5) Nothing in this Section 12B.5-1 (d) shall limit the right of theBoardofSupervisors to waive
the provisions, of this Chapter, . ¯ .:
¯ (e) ’ This Chapter shall not apply to (i) the investment of trust moneys 0r agreements relating to
the management of trust assets, (!i) City moneys invested in U,S. government securities or under
pre-existing investment agreement.s, or (iii) the investment of Ciiy moneys where the Trea.~.arer finds that:.(1)’ " No pers~n, entity or financial institution doing business in. the.City and County which is in
compl:i~nc~-with:this Chapter is capable 0f performing the desired transactio.n~(s.)~ or .... ’
~ (2): " The City will incur a financial loss which in the opiiiion of.thi~ Treasurer would violate his or
her fiduci.ary duties. ~ :...::.... ;i i.
.This subparagraph (e) shall be subject to therequireme.nt that.City moneys shall be withdrawn or
divested at the earliest possible maturity date if deposited or invested with a person, entity or financial
institution other than the U.S. government which does not comply with this Chapteri
(f) The General Manager of th’e Public Utilities Commission may waive the requirements of this -
Chapter where the contractor is providing wholesale or bulk water, power--or natural gas, theconveyance
or transmission of same, or ancillary services .such as spinning reserve, voltage control, or loading
scheduling, as required for assuring reliable services in accordance with good utility practice, to or on
behalf of the San Francisco Public Utilities Commission; provided that the purchase of same may not
practically be accomplished through the City’s standard competitive bidding procedures; and further
provided thai this exemption shall not apply to contractors, or franchisees providing direct, retail services
to end users within the City and County of San Francisco,
" (g)’ Sections 12B. l(b) and 12B. 2(b) shall not apply to any contracts or p~roperty contracts.
executed or amended priorto June 1, i997,, or to bid packages advertised and made available to the public,
or any eompetitive or sealed bids received by the City, prioi" to June 1, 1997, .unless and until such
contracts or property contracts are amended after June 1, 1997, and would otherwise be subject to this
Chapter. (Added by.Ord. 481:96, App. t2/20/96; amended by Ord. 401-97, App. 5/27/97; Ord. 286-97,
App. 7/18/97; Ord. 431-97, App. 11/21/9:7)
This Chapter shall be c0nstmed so as not to conflict with applicable federal or State laws, rules or
regulations. Nothing in this Chapter shall authorize any City agency to impose any duties or obligations in
conflict with. limitations on municipal authority established by federal law at the time such agency action
is taken.In the event that a court or agency of Competent jurisdiction holds that the State or federal law, rule or
regulation invalidates any clause, sentence, paragraph or section of this Chapter or the application thereof
1219/99 5:14 PM
2 of 3
to any person or circumstances, it is the intent of the Board of Supervisors that the court or agency sever
such clause, sentence, paragraph or section so that the remainder of this Chapter shall remain in effect.
(Amended by Ord: 261-06, App. 10/21/66; Ord. 286-97, App. 7/18/97)
3
I219199 5:14 P]
Sec. 12C,L
Sec.
Sec.
All Contracts and Property Contracts to’Include
Nondiscrimination Provisions.
Definitions.
Nondiscrimination Provisions.
Human Rights Commission Empowered.
Funding.
Nonapplicability, Exceptions and Waivers " ’
Seve’rability.
SEC. 12C.1. ALL CONTRACTS AND PROPERTY CONTRACTS TO INCLUDE NONDISCRIMINATION
PROVISIONS.
:(a) All contracting agencies of the City, or any department thereof, acting., for or on behalf of the
’City ~.nd County; shall include in all contracts and property contracts a provision obligating:the contractor
.not to discriminate on the basis of the fact or perception of that person!s race, color, creed, religion,
national origin, artcestry, age, Sex, sexual orientation, gender !dentity., domestic partner.status~ marital
statu£, disability or Acqtiired Immune Deficiency Syndrome, HIV status (AIDSA-IIV status), association
with members of classes protected under this chapter or in retaliation for opposition to a.ny practices
forbidden under thischapter against any person seeking accommodations, advantages, facilities,
privileges; services,, or membership in all business, social, or other establishmentsor organizations,
opera:ted by that contractor, and shall requxre such contractor to include asimilar provision in all
subcontracts. - .
(b) The reqmrements of this Chapter shall apply to (i) any-of a contractor’s operations within San
Francisco; (ii) a contractor’s operations on real property outside of San Franmsco owned by the City or
which the City has a right to occupy if the contractor’s presence at that location is connected to as contract
or property contract with the City.; (iii) where the work is being performed by a contractor for the City
within the United States; and (iv) any of a contractor’s operations elsewhere within the United States.
(Amended by Ord, 489-86, App. 1:2/18/86; Ord. 433-~4,-App.. 12/30/94; Ord 440-96, :App. 1118/96; Ord.
481-96, App, 12/20/96; Oral 201-97, App. 5/27/97; Ord. 286-97, App. 7/18/97; Ord, 255-99, File No.
991146, App. 10/8/99)’
As used in this Chapter the term:
"Age" for the purpose of membership refers to the age of any person who has attained the age of 18
years, except for bona fide senior citizen orgamzations.
"City" shall mean the City and County of San Francisco.
"Commission" shall mean the Human Rights Commissmn of the City and County of San Franclsco.
"Contract" shall mean an agreement for public works or improvements to be performed~ or grants to
be pi’ovided, or for goods or services to be purchased, at the expense Of the City and County or to be paid
out of moneys deposited in the treasury or out of trust moneys under the control or collected by the City
and County, and does not include property contracts, agreements entered into pursuant to settlement of
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legal proceedings, or contracts for a cumulative amount of $5,000 or less per vendor in each fiscal year.
"Contractor" means any person or persons, firm, partnership, corporation, or combination thereof,
who enters into a contract or property contract with a department head or officer empowered by law to
enter into contracts or property contracts on the part of the City and County.
"Director" shall mean the Director of the Human Rights Commission.
"Disability" is a physical or mental Impairment which substantially limits one or more major life
activities, or a record of such an lmpa~rment.
"Domestic partner" shall mean any person who has a currently registered domestic partnership with a
governmental body pursuant to State or local law authorizing such registration.
"Gender identity" shall mean a person’s various individual attributes as they are understood to be
masculine and/or feminine. -
"Property contract" shall mean a written agreement for the exclusive, use or occupancy of real
property for a term exceeding 29 days in any calendar year, wlae,ther by.si .ngulalr or.cumulative instrument,
(i) for the operation or use by others of real property owned or contr011ed b) the City for the operation of a
business, social, or other establishment or organization, including leases concess~0ns, franchises and
easements, or (i i) for the City’s use or occupancy of real property’ owned by others, including leases,
concessions, franchises.and easements. For the purposes of this Chapter, "exclusive use" means the right
tO use or occupy real property to the exclusion of others, other than the rights r~ser~ed by the fee owner.
"Property ce ntract" .shall not include a r~v.oc.able at-willuse or encroachment permit for the use of or _.
encroachment on City property .regardless of the ultimate durati-on of suchpermit, except that "property
contract" shall include such permits granted to a private entity for the use of City propeR5" for the purpose
of a for-profit activity. "Property contract", shall also not include street excavatior~, street construction or
street use permits~ agreements for the use of City right-of-way where a c0ntracti.ng utility has the power of
eminent domain, or agreements governing the use of City property which cotistitutes a public forum for
activities that are primarily for the purpose of espousing or advocating causes or.ideas and tt~at are
generally recognized’as protected by the First Amendment to the U.S. Constitution, or which are primarily
recreational in nature. ¯
"Qualified disabled employee" shall mean a person able to perform the essential functions of a job.
with reasonable accommodation.
"Sex". shall mean the character of being mate or female. .
"Sexual orientation" shall mean the status of being lesbianl gay, bisexual or heterosexual.
Subcontract shall mean an agreement to (i) provide goods and/or services, including construction
labor, materials or equipment, to a contractor, if such goods or services are procured or used in the
fulfillment of the con’tractor’s obligations arising from a. contract with the City, (ii) to transfer the right to
occupy or use all or a portion of a real property interest subject to a property contract to a subcontractor
and pursuant to which the contractor remains-obligated under the property contract.
"Subcontractor" means any person or persons, firm, partnership, corporation or any combination
thereof, who enters into a subcontract with a contractor. Such term shall include any person or entity who
enters into an agreement with any subcontractor for the performance of 10 percent or more of any
subcontract. (Amended by Ord, 489-86, App. 12/18/86; Ord; 433-94,App. 12/30/94; Ord 440-96, App.
11/8/96; Ord. 481-96, App 12/20/96; Ord. 201-97, App. 5/27/97)
SEC. 12C.3. NONDISCRIMINATION PROVISIONS.
Every contract and property contract entered into by any agency of the City shall incorporate by
reference and require contractor to comply with the nondiscrimination provisions of Section 12C.3 In
addition, all contractors must incorporate by reference in all subcontracts and require subcontractors to
comply With the requirements of this Section 12C.3, and failure to do so shall constitute a material breach
of contra~t.
In the performance of a contract, the contractor or subcontractor shall agree as follows:
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(a) The contractor or subcontractor will not discriminate against any person seeking
~ ~cl~; ~rotheraccommodations, advantages, facilities, privileges, services, or membership in the business, ¯’ ’
establishment or organization operated by the contractor or subcontractor on the basis of the
perception of that person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual
orientation, gender identity, domestic partner status, marital status, disability, AI39SiHTv" status
association with members of classes protected under this chapter or in retaliation for oppositio~L ~_o any
practices forbidden under this chapter. Services provided by contractor or subcontractor to ’the pubtic shall
be provided regardless of disability of persons otherwise entitled to or qualifiedfor such services.
(b) Should the contractor or subcontractor operate as. a membership orgamzatlon~ the contractor
or subcontractor will permit access to its membership records, rules, regulations and other perttaent data,
by the City’s awarding authority, or the Commission, for the pucpose of investigating to ascertain
compliance with the nondiscrimination provisions of this Chapter, and on request provide evidence that
the contractor 4r subc0ntractor has complied or will comply.with the, n.ondiset:imination provision~ of this
Chapter. The Director shall be the final arbiter of a contractor’s or subcontractor’s compliance or
su bstantial c0rfipliance with this Chapter and the Director’s determination-shall not be appealable to the
Commisslon.
(C) A contractor or subcontractor shall be deemed to have breac.hed the nondiscrimination
provisions of this C!~apter upon:
(1) -A.finding by the Director. or such other officialwho may .be-designated by tl~:e Commission,
that cont/adto~:0r subcontractor has wilfully violated such nondiscriminati,on provision~
(2) Upon such finding By the Director or other official designated by the Commission, the
awarding authority shall notify the contractor or subcontractor that unless the contractor or subcontractor
demonstrates to the satisfaction of the Director or other official designated, by. the Commission within such
reaso.nableperi0d a.~ the Commission shall determine, that theviolation hasbeen corrected,.actmn will be
taken ~i~ set forth inSection 12C.3(d) and/or Section 12C.3(g).;
(3) The Commission shall, within 1.0. daysof the date of issuance of any findings by the Director
or other offic!al designated by the Commission for the enforcement of this Chapter, mail to any person or
persons affected by said finding, a copy of said finding, together with written notice ofth.e right to appeal
such finding. Notice of appeal must be filed in writing with the Chairperson of the Commission within 20
days of the da~e of mailing said copy and notice.
(4) For purposes of appealproceedings under this Section, a quorum shall consist of eight
members of the Commission. The vote of the majority of the full Commission shall be necessary to affirm,
reverse or modify such decisions, order or other action rendered hereunder. Should a meinber of the
Commission be designated under Section 12C.3(c)(1) of this Chapter; that Commissioner may not
participate ~n an appeal under this Section except as. a witness,
(5) The presiding officer of the Commission shall have .the power to administer oaths to
witnesses ~n appeals before the C0mmlssion under this Section. In the event that any person shall fail or
refuse to appear as a witness in any such proceeding after being requested to do so, and if it shall appear to
the Commission tl~at,his or her testimony, or books, records, documents or. other things under his or her
control are material and relevant as evidence in the matter under consideration by the Commission in the
proceeding, the presiding officer of the Commission may subpoena such pe.rson, requiring his or her
presence at the proceeding and requiring him or her to bring such books,. records, documents or other
things under his or her control.
(6.) All appeals to the Commission shall, be open to the public. Records and minutes shall be kept
of suCh proceedings and shall be open to public inspection. Upon reaching a decision inany appeal, the
Commission shall give written notice thereof to the Director or other official designated by the
Commission, and the appellant or appellants. The decision of the Commission shall be final unless within
15 days of the filing and service of Written notice thereof appropriate legal proceedings are filed in a ~ourt
of competent jurisdiction by any party to the contract, property contract or subcontragt.
(7) If any contractor or subcontractor shall fail to appear at an appeal proceeding of the
Commission after having been given written notice to appear, such failure to appear shall be grounds for
12/9199 5:09 PM
1 of 3
termination of the contract, property contract or subcontract and such contractor or subcontractor shall be
deemed to have forfeited all rights, benefits and privileges thereunder. .
(8) The Commission shall promulgate rules and regulations for the implementation of the
nondiscrimination provisions of this Chapter.
(d) A breach of the nondiscrimination provismns in the performance of a contract: property
contract or subcontract shall be deemed by the City to be a material breach of contract aa.d the basis for
determination by the awarding authority that the contractor or subcontractor is an irresponsible contractor
or subcontractor as to all future contracts or property contracts for which such contractor or subcontractor
may submit bids. Such contractor or subcontractor shall .not, for a period of up to two years thereafter, or
until it shall establish and carry out a program m conformity with the nondiscrimination provisions of this
Chapter, be allowed to act as a contractor or subcontractor,under an.y contract.or property contract.
(e) Nothing contained in this Chapter shall be construed In any manner so as to prevent the City
from pursuing any~ other remedies that may be available at law,.equity or under a.ny contract or property
contract.
(f)The contractor .or subcontractor will meet the following standaids for compliance:
(1)If the contractor or subcontractor has been held to be irresponsible under Section 12C.3(d)
hereof, the contractor or subcontractor shall furnish evidence that it has established and is carrying out a
program in conformity with the nondiscrimination provtsmns of t[i.is Chapter.
(2) The Contractor or subcontractor may be required to file with the Commissio .n a basic
compliance report. Wilful falge statements.made in Such reports shall be p~nishable as provided by law.
No contractor or subcontractor shall be held in noncompliance for not filing such a report with the".
~ Commission unless it: has been specifically requlred to do so in~iwriting by theCgmmissmn.
(g) The awarding authority may deduct from the amount payable to th~ contractor or
subcontractor 1@ .the City under any contract or property contrac):..subj~; tO thisChapter, or may jmp0se
upon the c~ntractor or subcontractor, a penalty of $50 for.eacti p~rs6n fo~ ~acti calendarday d~iring.which
such perso’n was discriminated against in violation of the provisions of this Chal~ter.in addition io any -
other penalties provided for the violation of the nondiscrimination provisions of this Chapter or for the
failure of any contractor or subcontractor to abide by the rules and regulations of die Commission, the
contract, property contract or subcontract may be terminated or suspended, in whole.or in part, by the
awarding authority upon the basis of a finding as set forth in Section 12C.3(d) that the contractor or
subcontractor has discriminated contrary to the prowsions of this Chapt.er, and all moneys due or to
become due hereunder may be forfeited to, and retained by, the City. (Amended by Ord. 489-86, App.
12/18/86; Ord. 433-94,App 12/30/94; Ord. 201-97, App. 5/27/97.; Ord. 286~97, App. 7/18/97; Ord.
255-99, File No. 991146,App. 10/8/99)
SEC. ~2C.4. HUMAN RIGHTS COMMISSION EMPOWERED.
The San Francisco Human Rights Commission, its presiding officer and its director are hereby
granted the power to do all acts and exercise all powers referred to in Section 12C.3 thereof. (Amended
by Ord. 84-77, App. 3/11/77)
SEC. 12C.5. FUNDIlNG.
The Board of Supervisors shall appropriate such funds from the GenerM Fund of the City and County
of San Francisco, subject to budgetary and fiscal provisions of the Charter, as it may deem necessary for
enforcement of this ordinance. (A_mended by Ord. 84-77, App. 3/11/77)
SEC. 12C.5-1. NONAPPLI[CAI~ILIT~, EXCEPTIONS AND WAIVERS.
2
12/9/99 5:09
(a)The Director shall waive the requirements of this Chapter under the following circumstances:
(1)Whenever the Director finds, upon the advice of the awarding authority, that there is only one
prospective contractor willing to enter into a property contract with the City for use of City property on
the terms and conditions established by the City, or that the needed goods, services, construction services
for a public work or improvement, or interest in or right to use real property are available. 0nly from a sole
source, and the prospective contractor is not currently disqualified from doing business with the City, or
from doing business with any governmental agency based on any contract compliance requirements;
(2) If the contracting department or commission certifies in writing to the Director that pursuant
to Administrative Code Section 6.30 or 21.25 the contract or property contract is necessary to respond to
ar~ emergency which endangers the public health or safety and no entity which 9omplies with the
requirements of this Chapter capable of responding to the emergency is immediately available; provided
that suebocertification must be made prior to the Controller’s con~trgct ce..rtification
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12/9/99 5:09 PN
(3) Where the City Attorney certifies in writing to the Director that the contract involves
specialized litigation requirements such that it would be in the best interests of the City to waive the
requirements of this Chapter.
(b) This Chapter shall not apply.where the prospective contractor is a public entity and the
Dii-ector finds that goods, services, construction services for a public work or improvement or interest ~n
or right to use real property of comparable quality or accessibility as are available under the proposed
contract or property contract are not available from another source, or that the proposed contract or
property contract is necessary to serve a substantial public interest.
(c) This Chapter shall not apply where the contracting officer finds that the requirements of this
Chapter will violate or are inconsistent with the terms or conditions of a grant, subventlon or agreement
with a public agency or the instructions of an authorized representative pfany ~uch agency with respect to
any such grant; subvention or agreement, provided that the contracting officer has made a good faith
attempt to change’ the terms or conditions of any such grant, subvention, or.:agreement to authorize
application of this Chapter.
(d) Upon the request 0fa potential contractor or upon the contradting Officer’s oazn initiative,
after taking all reasonable measures to find an entity that complies with the law, the.contracting officer
may waive any or all of the requirements of this Chapter for any contract property contract or bid package
advertised and made available to the public, or any competitive or sealed bids received, by the City as of
the da~e of the enactment of this ordinance under the following circumstances:(1) Where the contract~t~g officer determines that there are noqu, alified responsiy.e bidders orprospecti’ve conllractors who couldbe certified by the Commission as belling in complia..nce" with the
requirements of this Ct~ap~er and that the contract or property, contract is for goods, a service or a project
that is essential to the City or City residents; or
.(.:2) Where the contracting officer determines that transaction.s entered into pursuant to bulk
purchasing arrangements through federal, State or regional entities whi~l’i’actua!!y reduce, the City’s
purchasing costs would be in the best interests of the City; or
-(3), Where the contracting officer determines that the requtrements of this Chapter would result inthe Citys entering into a Contract with an entity that was set up; or is being used, for the p~rpose of
evading the intent of this Chapter, which is to prohibit the City fro.m entering into contracts with entities
that discrim~n~te based on the criteria set forth in this Chapter;
(4) The waiver authority granted to contracting Officers in this ~ectio~ 12C.5-1(d) Shall be
subject to the requirements that:
.(i) All proposed waivers must be.submitted to the Director and the Clerk of the Board of
Supervisors. All proposed waivers must set forth the reasons the contracting officer ~s requesting the
waiver, what steps were taken to find an entity that complies with this Chapter and why the waiver does
- not defeat the intent of this Chapter, which is to prohibit the City.from entering into contracts with entities
that discriminate based on the criteria se~ forth in this Chapter. ~uch waivers shall be sUl~ject i0 the prior
approval of the Director, who shall take action approving or denying a ptopdsed waiver within 30 days of
receiving a notification of a proposed waiver from a contracting officer. If after 30 days the Director has
taken no action on the proposed waiver, the waiver shall be deemed approved. The Clerk of the Board of
Supervisors shall list the notice 0fthe proposed wmver at the rear of the next available Board agenda, and
(ii) Contracting officers report to the Director whenever such a w~iver is granted within five days
of granting the w~iiver, and
(iii) For any contract subject to approval by the Board, the contracting officer shall state in the
approving resolution whether any waiver under this Section 12C.5-1(d) has been or is proposed to be
granted for that contract, and
(iv) T.he Director shall conduct quarterly comprehensive reviews of the use of the waiver
authority by departments and shall make a report to the Board of Supervisors: Contractir~g officer~ who
have exercised waiver authority u nder this Section 12C.5-1 (d) in the previous quarter raust appear before
a Board of Supervisors committee and report on their use of such waiver authority. If the Board finds
abuse of waiver authority by a department under this Section 12C. 5-1(d), either as a resi~lt of a report of
12/9/99 5:09 P
the Director or upon its own initiative, the Board may by resolution transfer that ’waiver authority for that
department to the Director, to be exercised by the Director upon recommendation of the Contracting
officer under any or all of the c~rcumstances enumerated in this Section 12C, 5-1 (d);
(5) Nothing in this Section 12C.5-1(d) shall limit the right of the Board of SuperVlSOrS to waive
the provisions of this Chapter.
(e) This Chapter shall not apply to (i) the investment of trust moneys or agreeme:nts relating to
the management of trust assets, (ii) City moneys invested in U.S. government securities c~r under ¯
pre-existing investment agreements, or (iii) the investment ef City moneys where the Tr~surer finds tha~t:
(1) No person, entity or financial institution doing business in the City and County which is in
compliance with this Chapter is capable of performing the desired transactions(s); or
(2) The City will incur a financial loss which in the opinion of the Treasurer would violate his or
her fiduciary duties.
This subparagralSh (e) shall be subject to the requirement that City moaeys shall be ~vithdrawn or
divested at the earliest possible matumy date if deposited or invested with a person, entity or financial
institution {)ther than the U.S government which does not comply, with this Chapter.
(f) The General Manager of the Public Utilities Commission may waive the req~lremertts of this
Chapter where the contractor.is providing wholesale or bulk water, power or natural gas,.the conveyance
or-transmission of same, or ancillary services such as spinning reserve, voltage control, o~r loading
scheduling, .as required for assuring reliable services in accordanc~ with good utility practice, to or on
behalf of the-San Francisco Ptiblic Utilities Commission; provided that the purchase-of same may not
practidally be accomplished through the City’s standard competitive bidding procedu!es?and further
prov ided that this exemption shall not apply to contractors, or franchisees-providing direc}t, retail, sel-vices
to end users within the City and County of San Francisco, (Added by Ord. 481-96, App. 12/20/96;
amended by Ord. 201-97, App. 5/27/97; Ord. 286-97, App,. 7/18/97; Ord, 431-97, App 1~ 1/21/97)
SEC. 12C.6. SEVERAI~]~LIT¥.
This Chapter shall be construed so as not to conflict with applicable federal or State~ laws, rules or
regulations. Nothing in this Chapter shall authorize any City agency to impose any duties or obligations in
conflict with limitations on mumcipal authority established by federal law at. the time su{zh agency action
is taken. :In the event that a court or agency of competent jurisdiction holds that the State or federal law, rule or
regulation invalidates any clause, sentence, paragraph or section of this Chapter or the a0plication thereof
to any person or circumstances, it is the iiatent of the Board of Supervisors that the court "or agency seversuch clause, sentence, paragraph or section so that the remainder of this Chapter. shall rei’nain in effect.
(Amended by Ord. 84-77, App, 3/11/77; Ord. 286-97, App. 7/18/97).¯.~
:
Provisions Effective for Contracts So[ficited Prior to November. 1,!998
Nec. ’i 2T).__~_L.
Sec. 12[.3.2.
Sec. i 21..’.,.2-______kl.
Short Title.
General Findings.
Additional Findings.
Further Additional Findings Supporting Six-Month
Extension of MBE/WBE/LBE Ordinance - 11I.
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12/9/99 5:09 Pb
STAT~ O/= CAJ~I~O~[A - Sh1[e and Co[].sumer Sa-vlce~ AB~Ic’y
DEPAIRT~ENT OF..FA~R E~PLOY~ENT & HO~JS~tG
2014’T’Street, Suite 210, Sacramento, CA 95814-6835
"~16) 227-2883 3-FY (800). 700-2320 Fax (916) 227-2845
,;ww.dfeh.ca.gov
DEPARTi~ENT OF FAiFI EMPLO.YIVllENT AND HOUSING
This is a summary of the changes and amendments t,o California’s civil rights
statutes signed into law by Governor Gray Davis. in-1999..Most of the changes will
beoeme effective"dn January 1, 2000, They are o[ganized by subject matter., This
sumrma~iy-is intended as guidance and not as definitive legal advice,
December 6, 1999
Eli~PLOY~ENT
Sexual Orientation
Effective January 1, 2000, sexual orientation is added as a protected basis in
employment under the Fair Employment and Housing Act (FEHA) and will De
enforced by the Department of Fair Employment and Housing (DFEH). Previously,
discrimination based on sexual orientation in employment was part of the Labor
Code, andenforced by the Labor Commissioner
Under the new law, "sexual orientation" is defined as meaning heterosexuality,
homosexuality, and bisexuality. The FEHA’s protections will extend to actual as well
as perceived sexual or ent~ition,.and will include persons_ wh6 are discriminated
against because of their association with a person who is of a particular Sexual
orientation or who is perceived to be of a particular se.xual orientation;. ,Complainants
will now have one year to file sexual orientation employment discrimination
.com.. pl.aints.
Labor Code section 1102.1 is repealed.
Bil~ No.: AB 1001 (Villaraigosa), Chapter 592
Code Sections Affected: Government Code sections 12920, 1 2921, 12926,
subdivisions (m) and (p), 12930, subdivision (i), 12931, 12935, 1 2940, subdivisions
(a), (b}, (c), (d), and (h)(.1), .12944, and 12993, subdivision (a), and Labor Code
section 1102.1.
Nonprofil~ Religious.Associations and Corporations Exemption,
Effective January .1 ,. 2000, the definition of "employer" is expanded.with respect.to
nonprofit religious corporations or associations. The new definition is intended to
provide protection under the FEHA to persons who are employed to perform duties,
other than religious duties, at a health care facility operated by a religious corporation
or association for the provision of health care that is not restricted to adherents of
the religion that established the association or corporation.
Additiona Iy, an employer that is a religious corporation may restrict employment in
any position involving the performance of religious duties to adherents of the religion
for which the corporation is organized. Fur.thermore, the new definition is intended
to exclude from the protections of the FEHA individuals acting in an executive or
pastoral-care position connected with. the provision of health care.
Bill No.: AB 1541 (Keeley), Chapter 913
Code Sections Affected: Government Code sections 12922 and 12926.2.
~enta~ Disability.
Effective January 1, 2000, the special definition of "employer" for purposes .of
discrimination, on the basis of mental disability is delete.d... -Pr.eviousiy,. an "employer"
was deft.ned as any person employing 15 or more emp!oyees.~ Now, employers with
5 or mo~-e employees will be subject to the mental disability discrimination provisions
of the FEHA. The mental disability harassment provision remains unchanged; _ .
employers with orie or more employees are still subjec~t, to the harassme,nt provisions
of the FEHA.
Bill No..." ’ AB 1 670 (Committee on Judiciary), Chapter 591
Code Sections Affected: Government Code secl~ion 1’2926, subdivision (d).
Perception and Association
Effective January 1, 2000, the FEHA expressly provides that discrimination on the
basis of race, religious creed, color, national origin, ancestry; physical disability,
mental disability, medical condition, marital status, sex, sexual orientation, or age
also includes a perception that the person has any of thosecharacterist~cs, or is
" associated with a person who has or is perceived as having any of those
characteristics.
Bi~ No,: AB 1670 (Committee on Judiciary), Chapter 591
Code Sections Affected: Government Code section 12926, subdivision (m).
Definition of Supervisor
Effective-January 1, 2000, the FEHAprovides an express.:-definition of "sL~pervisor."
Previously, the definition of "supervisor’" has been created by court and FEHC .
interpretations..A supervisor is defined as any individual having the authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, .reward, or discipline other employees, or the responsibility to
direct them, orto adjust their grievances, or effectively recommend that action if, in
connection with the.foreg0ing, .the exercise of that authority is not of a merely
routine or clerical
nature, but requires the exercise of independent judgment.
Bill No.: AB 1670 (Committee on Judiciary), Chapter.591 .
Code Sections Affected: Government Code section 12926, subdivision (q).
Non-Job~Re~ated Inquiries
Effective January 1, 2.000, the FEHA’s prohibition regarding nor)-job-related inquiries
on. any of the protected bases is amended to clarify that.the prohil3ition applies to
both employees and applicants~ CurrentlY, though it is unlawful for an employer to
make any non-job-related inquiry regarding a pers0...n’s pr0te(~ted class, the FEHA does
not speci.fy whether tha..t prohibition applies during the application process or after
employment. This ame,n.dment clarifies that at no time.mayan employer make a non-
job-r.elate;~J’inquiry regarding an applicant’.s or employee’.~:-pr0tected cla~s’s. For
instance, in many cas~s; an applicant’sor emplo~!ee,’s reiigious beliefs willn0t be a
job-related inquiry either during the ap~licati6n process or any time during
employment. - - -
~}i~l No." AB 1670 (Committee on Judiciary), Chapter 591
Code Sections Affected: Government Co~le section 12940, subdivision (d)
Harassment.of Contract Workers
Effective January 1, 2000, the protection against unlawful harassment.has been
extended to persons who provide services pursuant to a contract. "Persons
-prOviding setvices pursuant to a contract" includes anyone who meets all of the
following conditions: (A) controls the performance of the contract and has discretion
as to the manner of performance; (B) is customarily engaged in independently
established .business; and (C) has control over the time and place the work is
performed, supplies tl~e tools and instruments Used,. and performs work. requiring
particular skill notordinarily used in the course of the empl.oyer,s work. Thus, for
example, an employer that contracts with a janitorial service to clean the office
would be liable for unlawful harassment of the custodial workers by one of the
employer’s employees.
Bi~ No.: AB 1670 (Committee on Judiciary), Chapter 591
CodeSections Affected: Government Code section 12940, .subdivision (h)(1),.
(h)(3)(A), and (h)(4)
3
.Effective January 1, 2000, the FEHA expressly provides that it is unlawful for an
employer or other covered entity to subject, directly or indirectly, any employee,
applicant, or other person to a test for the presence of a genetic characteristic. For
’nstance, it would be unlawful for an employer to test for the presence of a gene that
predisposes the app icant or employee to cancer.
Additionally, effective January 1, 2000, "genetic characteristic" is redef ned as either
of.the following: (1) Any scientifically or medicallyJdent, ifiable gene or chromosome,
or ombinatio~ or alteration thereof, that is known, to... be a cause of a diseaseor
di~0rde~ in a person or his or her offspring, or that is determined to be associated .
with a statistically increased risk of development of a disease or disorder, and that is
presently not assdciated with any symptoms or any;diseaseor disorder; or (2)
Inherited characteristics that may derive from the individual or family member, that
are known to be a cause of a disease or disorder in a person or i~n his or her
offspring, or that are determined to be associated ~vi~h a statistically increased risk of
development of adisease or disorder, and that are not presently-associated with any
symptoms of any disease or disorder. This change is merely technical and-does not
appear tO have any substantive effect.
Bill I~os.: AB 1670 (Committee On Ju.diciary), Chapter 591 and SB 1185 (Johnston),
Chapter, 311
Code Sections Affected: Government Code sections 1 2926,-subdivision (h)(2)(A)
and (h)(2)(B), and 12940, subdivision (I)
Reasenab~e Accommodation During
Effective January 1, 2000, it is unlawful for an employer to refuse to provide
reas0nable accommodation to ’~4n employee for conditions related to pregnancy,
childbirth, or related medical conditions, if she so requests,.with the advice of her
health care provider. For example, an employer would likely be required to allow a.
pregnant office worker to modify her break schedule.to accommodate more frequent
restroom visits if she so requests, with the advice of her health Care provider. This is
a new provision.
E~i~{ No.: AE] 1670 (Committee on Judiciary), Chapter 591
Code Sections Affected: Government Code section 129z~5, subdivision.s (c) and (e)
FEHA Remedies
In 1999, there are several amendments that affect the legal remedies under the
FEHA.
Expert Witness Fees
’Effective January 1, 2000, the FEHA expressly provides that, in civil cases
brought under the FEHA, the court may award expert witness fees to the
prevailing party. Previously, some courts were n__.o,t aw9.rd.ing expert witness
fees absent express statutory authority. -~
Bi~ No.: AB 1670 (Committee on Judiciary), Chapter 591
Code Sections Affected: Government Code Section 12965, subdivision (b)
Training.
Effe.ctive-Ja~iuary 1-, 2000, the FEHA expressly provides that a court may
order, in addition to other specified relief, .that.an employer conduct training for
all employees, supervisors, and management pers~n_nel regarding the
requirements of the FEHA, the rights and remedies of victims of discrimination,
and the employer’s internal grievance procedures. Though this provision is
new, many courts have been awarding this type of.injunctive relief.
IBi~ No.: AB 1670 (Committee on Judiciary), Chapter 591.
Code Sections Affected: Government Code section 12965, subdivision (c)(3)
FEHC Damages Authority ~ncreased to $150,000
Effective January 1, 2000, the Fair Employment and.Housing Commission’s
authority to award actual damages, in combination with theamount of any
administrative fines imposed, in non-housing casesi is increased to an.amount
of_One Hundred Fil~ty.Thousand Dollars ($150,000) per agg.rieved person per
respondentl Previously, the maximum amount was $50,000.
Bi~ 1~o.: AB 1670 (Committee on Judiciary); Chapter 591
Code Sections Affected: Government Code section 12970, subdivision (a)(3)
Age Dis c~imination
Effective January 1, 2000, the use of salary as the basis for differentiating be~:wee,~n
employees when terminating employment may be found to constitute age
discrimination if such use adversely impacts older workers as a group. This bili
further declares.the Legislature’s intent that the disparate impact theory of proof may
be used in proving claims of age discrimination. This change was made in response
to an Appellate Court decision in Marks v. Loral Corporation (1997) 57 Cal.App.4th
30, which held that an employer could justify laying off older employees over
younger.employees if salary was the. reason.
gi~i No.: SB26 (Escutia), Chapter 1294"1.1
Cede Sections Affected: Government Code section 1 2941.1
Emp~oye~ Identified on W-2 Form
Effective Jan:uary 1 ,:2000, there is a rebuttable presumptior~ that ,employer,"
i~l(J~es a~~/pe-rs0r~ 6~~ei~-tii~i i~t~h~ifie~ a~-tl~i~ e-~pl0ye¢ 6n a~ie~npl~/ee’.s federal - -
form W_-2 Wage and Tax-Statement. This change.supplements the current definition
of employer t.ha.t includes, in part, any person regular.ly emp!oying five or more
persons.
If the person first identified as the W-2 employer is not the actual employer, the
statute of limitations for filing a complaint with the Department of Fair Employment
and Housing is extended up to one year to allow a complainant to make a substitute
identification of the actual employer.
Bi~i No.: SB 211 (Soils.), Chapter 797
Code Sections Affected: Government Code sections 12928 and 12960
6
HOUSING
Se×ua~ Orientation
Effective January 1, 2000, the FEHA is amended to provide that discrimination in
housing on the basis of sexual orientation, is unlawful and a violation of public policy.
Though this specific provision is new, the FEHA already, prohibits sexual orientation
discrimin.atioi~ in .housing through its incorporation of the~ ..~ ,.Unruh:-~. ,:Act’
Eli,! No.: AB 1001 (Villaraigosa)~ Chapter 592
Code Sections Affected: Government Code sections 12920, 1 2955, subdivisions (a),
(b),(c),(d),(e),(h),(i~(j),(k), & (I), and 12955.8.
Discrimination-Free Housing as a Civil.Right
Eff~(~iV~:.~J~l~:~la~’~ i;-2000~ theFEHA is amended to.-clarjfytliatthe opportunity--to _.-
seek, obtain and hold housing without discrimir{ation on any basis ,protected by the
FEHA or the Unruh Act, is recognized as and declared to-be a civil right, This
provision was added to give housing disciimin-ation the-same level of recognition that
is currently given employment discrimination.
Bi~ No.: AB 1670 (Committee on Judiciary), Chapter 591
Code Sections.Affected: .Government Code section 1 2921.
Harassment in Housin~J
EffectiveJanuary 1, 2000, the FEHA is amended to expressly..provide that
"discrimination" includes unlawful harassment in connection with the provision of
housing.
Bill No.: AB 1670 (Committee on Judiciary), Chapter 591
Code Sections Affected: Government Code sections 12927, subdivision (c)(1), and
1 2955, subdivision (a).
7
Perception and Association
Effective January 1, 2000, the FEHA is amended to expressly provide that
discrimination includes a perception that a person has a protected characteristic or
that a perso_n is associated with another individual who has, or who is perceived to
have, any of those characteristics.
Bj~I No.: AB 1 670 (Committee on Judiciary), Chapte.r 591
Code Sectior~s Affected: Government Code section. 1.2955, subdivision (o).
Discrimination Based on Income
Several new amendments address the issue of housing discrimination based on a
person’s income or financial status.
Effective January i, 2000, the FEHA is amended to add "source of income" as
a pr-otected basis of discrimination with respect to the provision of housing
accommodations. "Source of income" is defined as lawful, verifiable income
paid directly to a tenant or a represe.ntative of a tenant. This amendment
would now protect, for example, a person .who receives AFDC.
Bill No.: SB 1098 (Burton), Chapter 590.
Code Sections Affected: Government Code section 12955, subdivisions (a),
(c), (d), (e), (h), (i), (j), (k), (I), & (o)(1).
Ag.gregate income
Effective January 1, 2000, the FEHA is amended to require a housing provider
to "account" for the aggregate income of persons residing together or
proposing to reside together "on the same basis" as the aggregate income of
married persons residing together or proposing to reside together.
Bi~ No.: SB 1098 (Burton), Chapter 590
Code Sections Affected: Government Code section 12955, subdivision (m).
8
income Standard
Effective January 1, 2000, the FEHA is amended to prohibit the use of a
financial or income standard in assessing eligibility for the rental of housing
that is not based on the portion of the rent to be paid by the tenant, in
instances where the tenant receives a government rent subsidy.
Bill No.’ AB 1098 (Burton), Chapter 590
Code Sections Affected: Government Code section 12955, subdivision (n).
Restrictive Covenants
Effective January’l, 2000, the FEHA is amended to provide-that land use
discrimination includes the existence, of a restrictive covenant thatmakes housing
opportunities unavailable. : .--~
Beginning January 1,2000, a county recorder, title insurance company, escrow
cOmpan~, r~aleState br0ker; reaFestate-agent, or association thatprovides-a
declaration; governing document, or deed to any person must place a cover page
o~erthe document stating that any restrictive covenant.containedin the document is
void.
However, effective January 1, 2001, discrimination will also include the existence of
a restrictive covenant even if accompanied by a. statement that the re’stdctive
covenant is void.
Bill.No.: SB 1148 (Burton), Chapter 589
Code Sections Affected: Government Code section 12955, subdi.vision (I).
E__Epert Witness Fees
Effective January 1,2000, the FEHA is amended-to expressly provide that in
civil actions for discriminatory-housing practices, the court may award the.
prevailing party, other.than the S~ate, reasonable attorneys.fees and costs,
including.expert witness fees, against any non-State Government party.
Bi~ No.: AB 1670 (Committee on Judiciary), Chapter 591
Code Sections Affected: Government Oode sections 1 2989.2 and 12989.3,
subdivision (g).
9
Senior Citizen Housing.
The sunset on the exemption for pre-1982 senior housing complexes tomeet senior
housing design requirements in the Unruh Act is extended to January 1, 2001.
Another change to the Unruh Act effective January 1, 2000, allows adult dependent
children who are disabled or terminally ill to qualify as permanent residents of a
senior housing facility. The requirement that a qualified permanent resident have an
ownership interest in, or an expectation of an ownership interest in, a dwelling unit in
a senior housing facility is repealed
Bi~ No.: SB 382 (Haynes), Chapter 324 ..- - -
Code Sections Affected: Civil Code sectio.ns 51.2, 51.3, and 51.11
Restrictive Housing, Covenants
New Civil Code section 1352.5 is added to prohibit the existence of a restrictive
c6venant iii violation ofthe FEHA-in-an¥ declaration or ot.her governing document-of
a common interest development. This new section requires the board of directors of
an association, without approval of the owners, to repeal any dec arat.ion or other
governing document that includes a restrictive covenant. This section also
authorizes the DFEH, a city and county in Which a common interest development is
located, or any person to bring an action against an association for injunctive relief to
enforce the Civil Code provision created by this bill .if, after written notice, an
association fails to repeal the restrictive covenant within 30 days of receiving the
notice. The DFEH enforces this provision of the statute.
IBi~ No.: SB 1148 (Burton), Chapter 589
Code Sections Affected: Civil Code section 1352.5
10
OTHER STATUTES
Boycotting and B~acklisting by Business Establishments
Effective January 1, 2000, the DFEH has jurisdiction to enforce Civil Code section
51.5, which prohibits business establishments from discriminating against,
boycotting or blacklisting, or refusing to buy from, contract with, sell to, or trade
with any person in this’state on the basis of race,.creed, color, national origin, sex,
or disability, arid includes a prohibition against such acti~ities..or conduct because a
person is asso&iated with a person who has, or is perceived ~o.have, any of those
characteristics. Previously, this law was enforced through a private right of action.
Bi~ No.: AB 1670"(Committee on Judiciary), Chapter 591
Code Sections Affected: Civil Code section 51.5, Government Code sections.12930
and 12948
Sexua~ Harassment in Professiena~ Re~ationship__S.
Effective January 1, 2000, Civil.Code.section .51.9, regarding sexual harassment in a
number 0fnon-empioymen~ business, service and professional relationships, is
amended to remove the requirement that the plaintiff request that the conduct stop.
This amendment also deletes the element that the conduct be persistent or severe
and changes it to pervasive or severe. DFEH does not enforce.this provision.
Bi~ No.: AB 519 (Aroner), Chapter 964
Code Sections Affected: Civil Code sections 51.9 and 52
Sick Leave
Effective January 1, 2000, new section 233 is added to the Labor Code to provide
that any employer who provides sick leave for employees shall permit an employee to
use Sick leave to attend to the illness of a child, parent, ,or spouse of the employee.
The sick leave permitted would be that which is accrued over six months.. This
section specifically provides that it does not extend the maximum period of leave to
which an employee is entitled under sectioh 12945.2 of the Government Code or the
federal Family Medical Leave Act. The DFEH does not enforce this statute. The
provisions of this section are enforced by the Labor Commissioner.
Bi~ INo." AB 109 (Knox), Chapter 164
Code Sections Affected: Labor Code section 233
11
DFEH DFEH
Set forth below is a. summary of the legislative bills signed by Governor Davis
during the 1999 legislative session. Most of the changes will become effective
~on January 1, 2000. The changes:’~are organized b~, bill number.
FAIR EMPLOYMENT AND HOUSING ACT
AssemMy Bill No: 1001 (Villarai~osa)~ Cha~,er 592
:N:: Government Code section 12920
Effective January 1, 2000, this bill amends Government Code section 12920 to
declare as public policy of this state that it is necessary to protect and safeguard
~the rights and Opportunity of all persons to seek, obtain, and hold employment
without discrimination on account of sexual orientation,
:N: Government Code section 12921
Effective January 1, 2000, this billl amends Government Code sec,ion 12921
to provide that the oppor~uni~ ~o seek, obtain and ho~d employment without
d~scr~m~nation because of, in~er M~a, sexuM orientation ~s recogMzed as and
declared to be a c~v~ fight.
Government Code section 12926, new subdivision (m)
l c[’ 13 !2/5/99 2:39 PM
Effective January !, 2000, this bill will add s~xual orientation to newlly added
subdivision (m) (AB 1670) pertaining to perceived status and association
with person of a protected status~
Government Code section 12926, subdivision (p)
Effective January 1, 2000, this bill amends Government Code section 12926,
by adding newsubdivision (p), defining "sexual orientation": as meaning
heterosexuality, homosexuality, and bisexuality.
Government Code section 12930
This bill amends Government Code section 12930, subdivision (i), to include
within the Department’s powers, functions and duties, .t~e power, to issue
publications, results of investigations and research as in. its.judgment will.
tend to minimize or eliminate discrimination because of, inter alia, sexual
orientation.
Government. Code section 12931
Effective January 1, 2000, this bill amends Government Cod~ section 12931,
regarding the Department’s assistance to communities and persons resolving
disputes relating to discrimination, to include the protected-basis of sexual
orientation.
Government Code section 12935
Effective January 1, 2000, this bill amends Government Code section 12935,
.subdivision (g), to inctlude within the Fair Employment and tfousing
Commission’s functions, powers and duties, the power to create or provide
financial or technical assistance to any advisory, agencies and: conciliation
councils as in its judgment would aid ineffectuating the purposes of the
FEHA rdating to discrimination becauseof, inter alia, sexual orientation.
Government Code section 12940
Effective January 1, 20110, this bill amends Government Code section 12940,
subdivisions (a), (b), (c), (d), and (h)(1), by adding sexual orientation as a
protected basis of discrimination.
Government Code section 12944
Effective January 1, 2000, this bill amends Government Code section 12944,
relating to prohibited practices of licensing boards, by adding sexuall
orientation as a protected basis of discrimination.
12/5/99 2:39 PM
2 of 13 "
Government Code section 12993, subdivision (a)
Effective January 1, 2000, this bill amends Government Code sectio~~ 12993,
subdivision (a), by adding sexual orientation as a protected basis of
discrimination,
Assembly Bill No, 1541 K.(~_e_eley)~ Chapter 913:
New Government Code section 12922
Effective January 1, 2000, this bill adds new section 12922 to!the
Government Code, to provide that an employer that is a religious
corporation may restrict.elig!bility for employmentin any po’.sition involving
.the performance of religious duties to adherents of the religi~.n for which the
corporation is organized.
New Government Code Section 12926.2
Effective January 1, 2000, this bill adds new section 12926.2. of th~
Government Code, to provide definitions of the terms "religious
corporation" and "religious. duties" to the Fair Employment and Housing
Act.
Subdivision (a) of said section defines "reiigious corporation’I asany
corporation formed under, or ’otherwise subject to, the nonprofit corporation
provisions of the California Corporations Code, and al~so includes nonprefl?*
corporations that are ~ormed primarily or exclusively for religious purp~ses
under the laws of any ~¢her state to administer the affairs of a~ organized
religious group.
Subdivision (b) of said section defines "religious duties" as d~ties of
enlployment connected with carrying on the religious activities of a
corporation or association.
This bi~ creates ~n exception to the exemption t’rom the definition
"employer" for religious corporations o~ associations not organized
private profit by providing that "employer" includes a relligious
or association.with respect to persons employed to perNrm d~ties,
religious dutfies, at a heait~ care facilfity operated by a religious
or association for the provision o~ heMth care ~at is not restricted ~o
adherents o[ t~e religion t~at established the association or corporat~o~.
(Gov. Code, ~ !~926.2, subd. (¢).)
This hi!~ further p#ovides tha* "employer" does not include a;relig[ous.
corpora*ion with respect to either the employmenL including iproraotion, of
3 of 13
12/5/99 2:39 PM
an individual of a particular religion, or the application of the employer’s
religious doctrines, tenets, or teachings, in any work connected with the
provision of health care. (Gov. Code, § 12926.2, subd. (c)(1).)
Finally, this bill provides that "employer" does not include ~ nonprofit
public benefit corporation incorporated to provide health ca~e on behalf of a
religious organization, with respect to employment, including promotion, of
an individual of a particular religion in an executiye or past0ral-care position
connected with the provision of health care. (Gov. Code, § 11~92g.2, subd.
(c)(2).)
Assembly BiIIl No. 1670 (Committee on Judiciar~2)_~_Chapter 591:
Government Code section 12926, subdivision (d)(2)
Effective January 1, 2000, this bill deletes Government Code:: section 12926,
subdivision (d)(2), w.hich providedthatin .mental disaMlity dases,-
"employer" meant any person employing 15 or more employees, Mental
disability cases are now subject to the five or more emp!oyeelprovision of
Government Code section 12926, subdivision(d). .
Government.Code section 12926, subdivision (m)
Effective January 1, 2~)~)0, this bil! adds new subdivision (m)ito section 12926
of the Government Code to provide that discrimination on the basis of race,
religious creed, color, national origin, ancestry, physical.disa.~illty, mental
disability, medical condition, marital status, sex, or ageincludes a perception
that the perso~ has any ~f those characteristics, or is associated wi~h a person
who has or ~s perceived to have any of those characteristics.
Government Code section 12926, new subdivision (q)
Effective January 1, 20~)0, this bill adds new subdivision (q) to section 12926
of the Government Code, defining "supervisor" as meaning :.any individual-
having the authority, in the interest of the emplgyer, to hire, itransfer,
suspend, lay off, recall, promote, discharge, assign, reward, Or discipline
other employees, or the responsibility to direct them, or to adjust their
grievances, or effectively to recommend that action, if, in connection with the
foregoing, the exercise of that authority is not of a merely rofitine or cllerica~
nature, but requires the exercise of independent judgment.
Government .Code section 12930
Effective Janua~. 1, 20~)~), this bN amends Government Codh section 12930,
subdivision (f)(2)~ by authorizing the 9epartment to receive, i~nvestigate, and
conciliate compllaints a~lleging a viollati~n of sections 51.5, 54($4.1, or 54.2 of
the Civilt Code. .
12/5/99 2:39 PI
4 of 13 :
Government Code section 12940, subdivision (d)
Effective January I, 2000, this bill amends Government Cod~ sectio~ J~2940,
subdivision (d), to clarify that subdivision (d)’s prohibition
non-job related .inquiries either verbally or through use of an
form, which expresses directly or indirectly, any limitation, specifications, or
discrimination on any of the protected bases, or any intent to make
limitation, specification or discrimination, applies to both "employees or
applicants",
Government Code section 12940, subdivision (h)(1)
Effective January 1, 2000, this bil!. amends Government Code sectk~r~ !.2940,
subdivision (h)(1) to provide that the protection against proNibited
harassment extends to a person providing services pursuant ~o a counteract.
Government Code section 12940, subdivision (h)(3)(A)
Effective.January 1, 20(~0, this bill amends G~vernment Cod~ sec¢i~n ~2940,
subdivision (h)(3)(A).to provid~ that the definRion of."emplWer.~’ ~ - -
harassment cases includes persons regularly receiving the se~ce~ ~ ~ae o~
more persons providing se~ces.pursuant to a contract. " .
Government Code section 12940, new subdivision (h)(4)
Effective January I, 2000, this bill adds new subdivision. (h)(4.) to s~c~:~n
12940 of the Government Code to provide that "persons proqiding ~e~wices
pursuant to a contract" means a person who meets all of the fo~l~w~g: (A)
controls the performance of the contract and has discretion as ~o t~e ~aanner
of performance; (B) is customarily engaged in independent]y~.estab~ished
business; and (c) has control over the time and place the work ~s performed,
supplies the rods and instruments used, and performs w~rk ~equM~g
particular skfll.n~t ordinarily used in ~he c~urse of the emplwer’s w~rk.
Government Code section 12940, new subdivision (1)
Effective January 1, 20~)~), this bill adds new subdivision (l) t0 sectio~~ 12940
of the Government Code, which provides that it is an unlawful empk~y~nent
practice for an emplwer or other covered entity t~ subject, directly ~r
indirectly, any employee, app~icant,or ~ther person to a test for the p~r’esence
~f a genetic characteristic.
Government Code sedtion 12945,. subdivision
Effective January 1, 2000, this bill adds paragraph (3) to subOivision (c) of
Government Code section 12945 t~ make it an unlawful empl~yme~ practice
for a~ employer, inc~nding both employers subject to and n~t~.subject to T~t~e
VII of the federa~ Civil R~ghts Act ~f 19~4, t~ refuse t~ provide reasonable
12/5/~9 2:39 PM
accommodation for an employee for conditions related to pregnancy,
childbirth, or related medical conditions, if she so requests, with the advice of
her health care provider.
:N: Government Code section 12945, subdivision (e)
This bill amends Government Code section 12945, subdivisi~:n (e), to
incorporate new subdivision (c)(3).
Government Code section 12948
Effective January 1, 2000, this bill amends Government Code section 12948,
pertaining to unlawful practices as including the denial, aiding, inciting or
conspiring in the denial of rights .created by specified provisigns of the Civil
Code, to include the denial, aiding, inciting or conspiring in ~he denial of
rights created by CiVil Code section 51.5.
Government Code section 12965, subdivision (b)
Effective January 1, 2000, this bil! amends Government Code section 12965,
subdivision (b), to provide that in civil actions brought under. the FEHA, "the
court may award a prevailing party expert.witness fees.
Government Code section 12965, subdivision (c)(3)
Effective January 1, 2000, this bill amends Government Code section 12965,
subdivision (c)(3), to provide that a court, in addition to other specified
relief, may order an employer to conduct traln~ng for all emp}oyees~
supervisors, and .management personnel regarding the requir.ements of the
FEHA, the rights and remedies of victims of discrimination, and the
employer’s internal grievance procedures.
Government Code Section 12970, subdivi.sion (a)(3)
Effective January 1, 2000, this bill amends Government Code section 12970,
subdivision (a)(3), to incre’ase the Fair Employment.and Housing
Commission’s authority to award actual damages, in combination With the
amount of any administrative fines imposed, to an amount o~One Hundred
Fifty Thousand Dollars ($150,000.00) per aggrieved person p~r respondent.
Senate B’~~ Cha~ t.er 222:
New Government Code section 12941.1
12/5/99 2:39 I
Effective January 1, 2000, this bill adds new section 12941.1 Of the
Government Code. This new section declares the LegMaturei’s rejection of
the court’s decision in Marks v. Lorai Corp. (1997) 57 Cal.App.gth 30, by
stating that said decision.does not affect existing law in any WaY, including,
but not limited to, the law pertaining to disparate treatment.. This new
section further provides that the use of salary as the basis for differentiating
between employees when terminating employment may be fo:und to
constitute age discrimination if use of said criterion adversel:~ impacts older
workers as a group, This provision further declares the Legis.lature’s intent
that the disparate impact theory of proof may be used in clai;ms of age
discrimination.
Senate.Bil! No. 21! (Solis)~ Chapter 797:
New Government Code section 12928
Effective January 1, 2000; new ~ection 12928 is added to the .Government
Code, which provides a rebuttable l~resumption that "employer", as defined. .
by section 12926, subdivision (d),- includes any person or entity identified as
employer on an employee’s federal form W-2 Wage and Tax’Statement, .~
Government Code section 12960
Effective January 1, 2000, section 12960 of the Government Code is amended
to allow the filing of a complaint with the Department ofFai.~ EmploYment
and Housing for a period not to exceed one year following a i’ebutted
presumption of the identity of ~ person’s employer.under new section 12928,
~n ~rder to a~low a person allegedly aggrieved by an un~awfu~ practice to ._ .
make a substitute ~dent~ficafion of the actual employer. :
Senate Bill No. 1185 (Johnston), Cha~ter 311
Government Code section 12926, Subdivision (h)
Effective January 1, 2000, this bill, in connection with its inclusion in the
term "medical condition", redefines "genetic characteristics!’ to include
either of the folllowing: (1) Any scientifically or medically idei~tifiable gone or
chromosome, or combination or alteration thereof,, that is kr~own to be a
cause of a d~sease or d~sorder ~ a person or h~s or her offspring, or that ~s
_determined to be associated w~h a statistically increased risk of devdop~en~
~f a d~sease or d~sorder, and that is presently not associated With any
sy~pt0ms ~r any d~sease or disorder; ~r (2) lnher~ted characteristics ~ha~
may ddrive fro~ the ~nd[v~dua] or family member, that ~re Nnown ~o be a
cause of a disease or d~sorder ~n a person ~r his or her offspring, or tha~ are
12/5/99 2:39
determined to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with any
symptoms of any disease or disorder. (Gov. Code, {} 12926, subds. (h)(2)(A)
. and (h)(2)(B), respectively.)
2. HOUSING
Assembly Bill No. 1001 (Villaraiffosa)~ Chapter 592:
:N: Government Code section 12920
This bill provides that discrimination because of sexual orien
housing is against public policy.
:ation in
:N: Government Code section 12955
Effective January 1, 2000, this bill amends Government Cod~ section 12955,
subdivisions (a), (b), (c), (d),. (e), (h), (i), (j), (k) and (1), .by a~ling sexual
orientation as a .protected basis of discrimination.-
~ Government Code section 12955,8
Effective January 1., 2t)00, this bil~ amends Government Cod~ section
12955.8, relating to proof of intentional viMations and proof 0f violations
causing a discriminatory effect, by adding sexual orientation ::as a protected
basis of discrimination.
Assembly Bill No, 1670 (Committee on Judiciary), Chapter 591:
Government code section 12921
Effective January 1, 2000, this bil~ amends Government Cod~ section 12921
to provide that the opportunity to seek, obtain and hold hou~.ing without
discrimination on specified bases or, any arbitrary basis prohibited by the
Unruh Civil Rights Act, is recognized as and declared tQ be a: civil right.
Government Code section 12927, subdivision (c)(1)
Effective January 1, 20~)0, this bill amends Government Code section 12927,
subdivision (c)(1), to provide that !idiscrimination" includes harassment in
8of 13
12/5/99 2:39 P
connection with the provision of housing accommodations.
:N: Government Code section 12955
Effective January 1, 2000, this bill amends Government Code section 12955,
by adding new subdivision (o), which provides that "race, color, religion, sex,
marital status, national origin, ancestry, familial status, or disability, includes
a perception that the person has any of those characteristics or that the
person is associated with a person who has, or is perceived to!have, any of
those characteristics.
Government Code section 12955
Effective January 1, 2000, tliis bill amends Government Code section 12955,
subdivision (a), to prohibit harassment by an owner of a housing
accommodation in connection with the provision of housing
accommodations.
Government Code section 12989.2
Effective January 1, 2000, this bill amends Government Code.: section
12989.2, to provide that in civil actions for discriminatory ho .a. sing practices,
the court may award the prevailing party reasonable attorneys fees and c(~sts,
including expert witness fees, against any party ott~er than the state. .
Government Code section 12989.3, subdivision (g)
Effective January 1, 2000, this bill amends Government Cod~ section
12989.3, subdivision (g), to providethat in a civil action brou~ght by the
Attorney General, the court may award expert witness fees.
Senate Bill 1098 (Burt~. n~er 590:
Government Code section 12955
Effective January 1, :~000, section 12955 of the Government Code,
subdivisions (a), (c),. (d), (e), (h), (i), (j), (k) and (l), are amended to add
source of income as a protected basis of discrimination with r~spect to the
provision of ho~s~ng accommodations. S~urce ~f income is defined as lawfM,
verifiable.income paid directly to a tenant or a representafive~ of a tenanL
(Gov. Code, ~ 12955, subd. (~)(1).)
Thfis bill further amends Go~ernment Code section 12955, byiadding, new
subdivision (r~), to require a housing provider to "account" for the aggregate
income of persons residing together or proposing to reside together "on ~he
same basis" as t~e aggregate fincome of married persons residing toget~er or
proposing to reside ~gether.
9of t3 12/5/99 2:39 PI~.
This bill further amends Government Code section 12955, by: adding new
subdivision (n), which prohibits the use of a financial or income standard in
assessing eligibili~ for the rental of housing that is not basedlon the portion
of the rent to be paid by the tenant, in instances where the teflant receives a
government rent subsidy~
Senate Bill No. 1148 (Burion), Chaunter 589:
Government Code section 12955, subdivision (1)
Effective January 1, 2000, this bill amends Government Code~section 12955,
subdivision (l), to indicate that discrimination through publiqor private,land
use practices, decisions, and authorizations includes the existence of a
restrictive covenant that makes housing opportunities unavaiiable. Effective
January 1, 2001, discrimination under subdivision (1) also includes the
existence of a restrictive covenant accompanied by a statement that the
restrictive covenant is.repealed or void.
New Government Code section 12956.1
Effective January 1, 2000, this bill adds new section 129.56.1 t0 the
Government Code, which provides that a CountyRecorder, title insurance
company, escrow company, real estate broker, real estate agent, or
association that provides a declaration, governing documents~ or deed to any
person shall place a cover page over the document stating, "If this document
contains any restriction based on race, color, religion, sex, familial status,
marital status, disability~ nafiona! origin or ancestry, that rest-fiction violates
state and federal fair housing laws and is void. Any person hqlding an.
interest in this property may request that the county recorde~ remove the
restrictive covenant..." This bill further provides that any pe~on who files a
document for t~e enpress purpose of adding a racially restrictive covenant is
guilty of a misdemeanor.
UNRUH CIVIL RIGHTS ACT
Assembllv Bill No.:519 (Aroner)~ Cha~
:N~ Civil Code section 52
Effective January 1, 20~0, this bill amends Civil COde section :52 by
extending certain specified remedy provisions to a person chilrning sexuM
IO of 13.
1215/99 2:39 F
harassment in violation of Civil Code section 51.9.
Senate Bill No. 382 (I-Iaynes),~ 324:
Civil Code section 51,2
Effective January 1, 2000, this bi!! amends Civil Code sectioni51,2 to extend
by one year, to January 1, 2001, the sunset on the exemption for pre-1982
Senior housing complexes to meet senior housing design requirements.
~ Civil Code sections 51.3 and 51.11 .
Effective January 1, 2000, this bill amends Civil Code sectioni51.3,
subdivision (c)(3), and Civil Code section 51.11, subdivision (b)(3), to allow
adult dependent children who are disabled or terminally ill tqoqualify as
permanent residents of a senior housing facility. This bill further repeals the
current requirement under Civil Code sections 51.3 and 51.11 that
qualified permanent.resident have an ownership interest in, ~r an
expectation of an ownership interest in, a dwelling unit in a senior housing
facility. " ~
RELATED STATUTES.
AssemblEBil] No. 109, (Knox), Chapter 164:
New Labor Code section 233
Effective January 1, 2000, this biR adds new section 233 to th~ Labor Code.
This new section provides that any employer who provides si~k leave for
employees shall permit an employee to use, in any calendar y~ar, accrued and
available sick leave that would be accrued during six months &~pioyme~t, at
the employee’s then current rate of entitllement, to attend to the i~ness of
child, p~rent, ~r Spouse ~f the employee. This section speci~c~y provides
that it does not extend the maximum period of~ezve t~ w~ichiz~ employee
entiRed.under section 12945.2 of t~e Government Code or the federal Family
Medfica~ Leave Act. The DFEH dees n~t enforce th~s statute. The provisions
of th~s section ~re enforced by the Labor Commissioner.
II ofl3 12/5/99 2:39 PM
Assembly ]Bill No. 519 (Aroner)~ Cha__pter 964:
Civil Code section 5 !,9
Effective January. 1, 2000, this bill substantially amends Civil~Code section
51.9, regarding sexual harassment in a number of non-employment business,
service, and professional relationships, by conforming the definitions and
standards regarding sexual harassment in said relationships @ith other
similar federal and state laws, including the FEHA. The DFEH does not
enforce this statute.
Assembly Bill No. 1001 (Villaraigosa), Chapter 592
:~ Labor Code section 1102.1
Effective January 1,2000, Labor Code section 1102.1, which
orientation discrimination in employment, is repealed..
~rohibits sexual
Assembly Bi!! No. !670 (Committee on Judiciary)~ Chapter 59..1:
Civil Code section 51.5
Effective January 1, 2000, this bil! amends Civil Code section !51.5,
prohibiting business establishments from discriminating again"st, boycqtting
or blacklisting, or refusing to buy from, contract with, sel! to, ~r trade with
any person in this state on the basis of race, creed, color, natidnM origin, sex,
or diszbi~i~, to include a prohibition against said activities or~:~conduct
because a person is associated with a person who has, or is perceived ~o have,
any of those characteristics. The DFE~ wiR enforce this statu~e effecl~ve
Janua~ 1, 2000.
Senate Bill No. 1148 (Burton), Cha~
~ Civil Code section 1352.5 .
Effective January 1, 200(t, this bil! adds new section 1352o5 to ithe Civi~ Code,
12/5/99 2:39 Pr
12 of 13
which prohibits the existence of a restrictive covenant in violfition of ’;~
FEHA in any declaration or other governing document of a c~mmon i~: :~’est
development. This new section requires the board ofdirector~ of an
association, without approval of the owners, to repeal any declaration o~°
other governing document that ~ncludes a restrictive covenanL
This new section authorizes the DFEH, a city and .county in ~h~ch a co~~o~
interest development is located, or any person to bring an action agai~ ~
association for inj uncfive relief to enforce the Civil Code provision created by
this bill if, after written notice, an association fails to repeal the restrictive
covenan~ within 30 days of receiving the notice, The DFE~ efiforces th~s
provision of the statute. ~
L~st modified: November 18, 199.9
13 of 13 1215/99 2:39 PM
ATTAC NT
2.30.160 Certificate of nondiscrimination.
The bidder to whom the contract is to be awarded shall provide a certificatestating:
(a) Whether the bidder is currently in compliance with all federal and state of
California laws covering nondiscrimination in employment, and that the bidder wilt pursue an
affirmative course of action as required by affirmative action guidelines as set forth in Section
2.30.150 and resolutions adopted pursuant thereto;
(b) That if awarded the contract, the bidder will not discriminate in the employment
of any person under the contract because of race, color, national origin or ancestry; or~religion, of
such person; and
(c) That the bidder will participate, if requested, in p~e-award review of his
qualifications under the provisions of this section.
The requirement of~this section shall apply only to contracts in excess of $5,000.00.
Notwit.hstanding the fact that an award is to be made by the city council or the :city manager, a
failure to meet the requirements of this section shall disqualify the bidder from further
consideration.
(Ord. 4462 § 1 (part), 1997: Ord. 3927 § 2 (part), 1989)
2.30.170 Penalties for discrimination in employment.
Any contractor who is found in violation of the nondiscrimination provisions of the State
of California Fair Employment Practices Act or similar.provisions of federal law or executive
order in the performance of any contract with the city, thereby shall be found in material breach
ofsuch contract and thereupon the City shall have the power to cancel or. suspend the contract, in
whole or in part, or to deduct from the amount payable to such contractor the sum of $25.00 for
each persort for each calendar day during which such person was discriminated against, as
damages for said breach of contract, or both. Only a fmding of the State of California Fair
Employment Practices Commission or the equivalent federal agency or officer shall constitute "
evidence of a violation of contract Under this section.
(Ord. 4462 § 1.(part), 1997: Ord. 3927 § 2 (part), 1989)
2.30.180 Penalties for violation of affirmative action provisions.
Any contractor Who is found by the city manager to be in violation of the agreement to .
pursue an affirmative course of action or in violation of any provision of the affirmative action
guidelines pertaining to his contract shall be found in material breach of such contract and
thereupon the city ~hall have the power to cancel or suspend the contract, in whole or in part, or
to deduct from the amount payable to such contractor the sum of $250.00 for each calendar day
during which the contractor is found to have been in noncom ~liance; as damages for said breach
of contract, or both.
(Ord. 4462 §1 (part), 1997: Ord. 3927 § 2(part), .1989)
PaloAlto Municipal Code
ATTAC °T 4
Chapter 9.74 DISCRIMINATION AGAINST FAMILIES WITH
MINOR CHILDREN IN HOUSING*
Sections:
9.74.010
9.74.020
9.74.030
9.74.040
9.74.050
9.74.060
Findings and purpose.
Definitions.
Prohibited activities.
Exemptions.
Requirements of financial obligations not prohibited.
Penalties - Remedies.
9.74.010 Findings and purpose.
(a)The city council finds and declares that:.
(1)Arbitrary discrimination against persons with minor children exists in the city.
(2)The existence of such discrimination poses a substantial threat to the public health
and welfare of a large segment of the community, namely, families with children.
(3) The overall effect of such discrimination is
Palo Alto Municipal Code
ATTAC 5
POLICY AND PROCEDURES 2-13/H,RD
Revised: December 1995
UNLAWFUL HARASSMENT, INCLUDING SEXUAL HARASSMENT,
IN THE WORKPLACE
POLICY STATEMENT
The purpose of this policy is to establish a strong commitment to prohibit illegal
harassment inthe workplace, :
The City of Palo Alto will not condone any form of illegal harassmentas defined below,
including sexual harassment, in the workplace. Such conduct will not 5e tolerated, and
disciplinary action up to and including termination will be taken against an employee
engaging in unlawful harassment. Any retaliatia against a person for filing a charge or
making .a complaint is also prohibited. Any employee found to be retaliating against
another employee shall be subject to disciplinary action.
Federal and State Law
Federal and/or state law. provide that it shall be an unlawful discriminatory practice for
anyemployer, on the basis of:ra£e, religion, color,, national origin, ancestry, physical or
menta! disability, medical condition, marital status, sex, age or sexual orientation of any
person, to discharge, without just cause, to refuse to hire, or otherwise to discriminate
against that person with respect to any matter directly or indirectly related to
employment. Harassment of any.employee on the basis of sex violates these laws.. - ~
What Constitutes Harassment
Harassment includes but is not limited to:
Verbal Harassment - For example, epithets, derogatory comments, or slurs on the
basis of race, religious creed, color, national origin, ancestry, physica! or mental
disability, medical condition, marital status, s~, age or sexual orientation. This
includes inappropriate sex-oriented comments on appearance, including dress or
physical features, or race-oriented stories.
Physical HaraSsment For example, assault; also, impeding or blocking
movement, physicallyinterfering with normal work or movement when directed at
an individual on the basis of race, religion, color, national origin, ancestry,
physical or mental disability, medical condition, marital status, age, sex or sexual
orientation. This could be conduct in the form of pinching, grabbing, patting,
propositioning, leering, or making explicit or implied job threats or promises in
return for submission to physical acts.
Page 1 of 4
POLICY AND PROCEDURES 2-1,3/HRD
Revised: December 1995
o Visual Forms of Harassment- For example, derogatory posters, notices, bnlletins,
cartoons, or drawings on the basis of race, religious creed, color, national origin,
ancestry, physical or mental disability, medical condition, marital status, sex, age
or sexual orientation.
Sexual Favors- Unwelcome sexual advances, requests for sexml favors, and other
verbal or physical conduct of a sexual nature which are conditioned upon an
employment benefit, unreasonably interfere with an individual’s work performance
or create an offensive work environment.
Guidelines for Identifying Sexual H~rassment
To help clarify what is unlawful sexual harassment, the State Department of Fair
Employment arid Housing, the.Federal Equal Employment Opportunity Commission and
the courts use the following guidelines:
Sexual harassment is conduct of a sexualnature which is "unwelcome."
Sexually harassing conduct may take the form of visual, verbal, physical and/or
environmental conduct. It need not be explicit, nor even specifically directed at
the victim.
°It is irrelevant whether the victim has "cmsented" to engage in sexual conduct or
whether the victim’s agreement was "voluntary" so long. as the conduct vcas
"unwelcome." Historically, courts have used a "reasonable.man" test to determine
liability. However, in the case of sexual harassment, the taditional standard has
been declared to be inappropriate in the context of a sexual harassment complaint
initiated by a woman. Recognizing the heightened sensibilities of women to
unwelcome sexual conduct, courts now use the "reasonable woman" standard, i.e.,
consideration for the feelings of the victim, when a woman is the victim of sexual
harassment.
°Sexual harassment occurs when:
a.submission to sexual conduct is an explicit or implicit term or condition of
an individual’s employment;
b.the submission to or rejection of sexual conduct by an individual is the
basis for any employment decision affecting that individual; or
c.sexual advances, requests for sexual favors, verbal or physical conduct of a
sexual nature or display of audio or visualmaterial of a sexual nature have
Page 2 of 4
]POLICY AND PROCEDURES 2-13/H~
Revised: December !995
the purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile, or offensive worldng
environment.
PROCEDURE
Complaint Procedure
Because the City of Pab Alto has an obligation to investigate all
complaints, any employee whofeels he or she has been the victim ofillegal
harassment, including sexual harassment as defined above, should’:contact
his or her supervisor, department head, another manager within or outside
of the department, or a staff member in the Human Resources Department.
Any supervisor, manager or department .head. who receives a complaint
should notify the Human Resources Director or his/her designee
immediately. This initial report can beoral or written. All reports will he
investigated and discussed with all parties to an incident.
°Upon receipt.of the complaint, .the Human..Resources Director or :his/her .......
designee will authorize investigation of the charges including contacting
the complainantl the accused harasser and any other person who is believed
to have relevant knowledge Concerning the complaint. --
Upon completion of the investigation, the Human Resources.Department in
consultation with the department head will determine what, if any,
disciplinary action will be taken.
If it is determined that illegal harassment occurred, appropriate disciplinary
action up to and including termination will be taken. The severity of the
discipline will be determined by the severity and/or freq~ncy of the
offense.
4
Disciplinary action taken under this procedure may be appealed with or
without representation subject to appeal or grievance procedures indicated
in applicable Agreements or Merit Rules and Regulations.
Employee Responsibilities
1.Individual Employee
A.City employee is to report any act of illegal harassment as herein defined,
including sexual harassment, to his/her immediate supervisor or department
Page 3 of 4
POLICY AND PROCEDURES 2-13/ttRD.
Revised: December 1995
head or to the Human Resources Department as provided in the above
procedure.
Management and Supervisory. Employees
Management and supervisory personnel are responsible for ensuring that
the work environment is free of illegal harassment as herein defined,
including sexual harassment, by:
a.Informing all employees under thei direction of the City policy and
complaint procedure.
b.Reporting any instances of illegal harassment, including sexual
harassment, to the Human Resources Department for investigation
and to their department head.
c.Based on the findings of the investigation, implementing appropriate
disciplinary action.
-3.Human Resources Department
The Human Resources Department is responsible for administering the
complaint procedure, authorizing and/or conducting an investigation and,. in
consultation with the department head, recommending disciplinary action
commensurate with the severity of the offense.
NOTE:Questions and/or clarification of this policy should be directed to the
Human Resources Department.
Page 4 of 4
ATTAC
POLICY AND PROCEDURES 1-23fl~SN
Revised: October 1997
AMERICANS WITH DISABILITIES ACT (ADA)
GRIEVANCES
POLICY STATEMENT
A member of the public .who believes that he or she (individually or on behalf of a
specific class of individuals) has been subjected to unlawful discrimination on the basis:
rato ~tto pottcy, set-vice or program may ~ -- -’~:-~ ~
himself, herself or by an authorized representative. Use.of this grievance.procedure is
a prerequisRe to the pursuit of other remedies. Grievances. by Ci~ employees, relating
ma~ers within the scope of the Merit System Rules and Regulations or employee
barga~ing agreements, are excluded from this grievance procedure and should Nllow the"
applicable procedures set fo~h ~ the Merit System Rules and Regulations or appropriate
Memorandum of.Agreement. .~.
Definition. A grievance is an expression of dissatisfaction with a City of P~a, lo Alto
policy, service or program regarding acces~ o~ the opp0rmnity~ to participate, in such.
programs on the basis of disability as defined in the.Americans with Disabilities: Act of.
1990. ..
Objectives. The objectives of this policy are:
, to comply with the Americans with Disabilities Act of 1990;
® to assure that grievances are promptly acknowledged andresolved;
to e~tablish uniform standards ’and procedure for handling: grievances
throughout the entire City organization;
to provide citizens with an accessible, convenient, efficient system for bringing
complaints to the City’s attention;
, to demonstrate that the City is responsive to the concerns of itscitizens;
to reduce or prevent the occurrence of circumstances that lead to justifiable
citizen complaints.
Page 1 of 4
POLICY AND PROCEDURES 1-23/PLr.~:
September 1992
Revised: October 1997
PROCEDURE
A.To File a Complaint
Any individual who believes he or she has been discriminated against on the
basis of disability may make a written complai,nt. In order to facilitate the
investigation, the complainant is encouraged to submit the Complaint within 30
days of the alleged incident(s). In all cases, complaints must be received-in
unu mcmu~ the location date m~ mt~g~ct incider~t occurred ~ithin
180 days of the alleged incident.. All complaints should be sent t0.Ne
Palo Alto Disabilities Act D~ector, Inspection Se~ices DNision,. 250 Hamilton
Avenue, Palo Alto CA 94301 for resolution. A wrRten record of the complaint
and the action taken will be maintained in the Ci~’s Inspection Se~ices .Division
Nr t~ee years. A decision by the Disabilities Act Director will be rendered in
writing within 15 work~g days ~om the date the complaint is recdved.. ADA
-Grievance Procedure forms, a sample of which is a~ached~ areavailable ~om
any Ci~ depa~ment or from the DisabilitiesAct Director. ....
2. The complaint shall include.:.... ::,::i :
a description of the alleged discriminating activity, policy, program or service;
date(s), time(s) and location(s) of incident(s);
name(s) of alleged offender(s), if any;
name(s) of witnesses, if any; and
remedy desired.
o
Upon receipt of a complaint, the Disabilities Act Director (Director) shall
investigate all charges. The investigation shall include, but not be limited to,
interviews with: .(a) the complainant; (b)the person(s) responsible for the
activity, policy, program or service engaged in the alleged incident; and any
other person.the Director believes to have relevant knowledge concerning the
complaint.
Upon completion of the investigation, the Director shall determine whether or
not the alleged complaint should be sustained, giving consideration to all factual
information gathered through the investigation, all of the circumstances,
including the nature of the activity, program or service and the Context in which
the alleged discrimination occurred.
The Director shall then prepare .a written report stating the results of the
investigation and the determination as to the action(s) to be taken, if any. The
Page 2 of 4
POLICY AND PROCEDURES 1-23/PLN
September 1992
Revised: October 1997
results of the investigation and determination with appropriate
recommendation(s) shall be conveyed to the complainant, the head of the City
department which is the subject of the complaint, and any other person(s)
deemed relevant by the Director.
B.Ap_p._~al Process
If the complaint is not resolved to the complainant’s satisfaction by the
Disabilities Act.Director, .the complainant can request the Director. to. forward ,the
complaint to the Accessibility standards Advisory Board (Accessibility. Board)
for a public hearing:
o
The Accessibility. Board will consider complaints on appeal that are not resolved
by the Director to the satisfaction of the complainant. Tlae Accessibility Board
will hold a noticed public hearing. Notice shall be given by publication onc~ in
a newspaper of general circulation in .the City at least 10 days prior to the
hearing. At the close of the hearing, the Accessibility Board,:shall make a-
recommendation :on the complaint and forward the recommendation to the City
Manager, the Director andthe complainant.
The City Manager, or his/her designee, wiI1 consider the complaint and the
record from the Accessibility Board and shall make a decision ~ on the complaint
within-30 days after receipt on the recommendation from the Accessibility
Board. The decision of the City Manager, or his/her designee, shall be final:
C. A written record of the action taken on each request or complaint shall be
maintained as a part of the records at each level of the grievance process for three years.
D. The complainant’S right to a prompt and equitable resolution of.the complaint will
not be affected by the complainant’s pursuit of other remedies, such as the filing of a
complaint with the Department of Justice or other appropriate federal agency, or the
filing of a. suit in state or federal court.
NOTE."Questions and/or clarification of this policy should
Department of Planning and Community Environment.
Attachment: City of Palo Alto ADA Grievance Procedure Form
be directed to the
Page 3 of 4
POLICY AND PROCEDURES 1-23/PLN
September 1992
Revised: October 1997
CITY OF PALO ALTO
ADA GRIEVANCE PROCEDURE FORM
DATE
COMPLAINANT NAME
ADDRESS
TELEPHONE
NATURE OF
~COMPLAINT
DATE/TIME
LOCATION
NAME(S) OF PERSONS
INVOLVED ,. "
REMEDY REQUESTED
Please forward all~
grievances to:
Fred Herman, Disabilities Act Director
P.O. Box 10250
Palo Alto, CA 94303
650/329-2496
650/328-1199 TDD.
Page 4 Of 4
ATTAC 7
POLICY AND PROCEDURES t-29/CSI)
December 1995
COMMUNITY SERVICES CO-SPONSORSHIP POLICY
POLICY STATEMENT
This policy institutes a process that will provide appropriate support for nonprofit
organizations that provide community service programs similar or .related to those
provided by the City’s Department of Community Services for Palo Alto residents: The
policy sets levels of support which the City will offer to groups 2seeking City .co-
sponsorship and establishes a process and criteria to be used by the Department of
Community Services to identify, when and how nonprofit groups are granted co-
sponsorship for.specific programs or events.
Implementation of this procedure is the responsibility of the Director of Colrartunity
Services. Any exceptions tO this po!icy must be approved by the City Manager ot.Ns/her
.designee.
PROCEDiJR
A.Definition of Cosponsored Or.~anizations
A group may request co-sponsorship by the City’s Department of Community Services if
it meets the following criteria: .
The group has state certification as a nonprofit organization. A group may. be a
subgroup of a state or national nonprofit organization, provided that services are
provided in Palo Alto.
o Goals of the organization are aligned with those of the City’s Department of
Community Services, or with other City policies and objectives as stated in the
City’s budget document or Municipal Code, or as otherwise determined by the
City Council.
3,The group provides programs which are compatible.with those, provided by. the
Community Services Department.
B.Requirements for All Cosponsored Organizations
1.The group must provide financial and all other applicable information
documenting adherence to the co-sponsorship requirements on an annual basis.
Page 1 of 3
POLICY AND PROCEDURES 1-2’9/CSD -
December 1995
2. All cosponsored programs or events must be open to the public and provide
¯ services without discrimination against any individual.
3.The majority of the funds, if any, raised by the group in the cosponsored event(s)
must be used to support specific programs and events for residents ofPalo Alto~
4.The group must provide all insurance coverage required by the City’s Risk
Manager.
5.In the use of City facilities and space in pub!ications,, cosponsored activities, wi!! .... .,
not receive priority over those conducted by the City.
Levels of City Co-sponsorship of Nonprofit Groups
1. "A" Level Co-sponsorship
ao 75 percent or more of the group members and participants in,.. specific
programs and events are residents of the City of Palo Alto, or are enrolled in
the Palo Alto Unified SchooFDistrict. "
Human Services contract agencies must currently receive funding either from
the City’s General Fund or the Cormr~unity Development Block Grant
program.
2. "B" Level Co-sponsorship
go 50 percent or more of the group members and participants in specific
programs and e~’ents are residents of Palo Alto, or are enrolled in the Palo
Alto Unified School District.
D. ~ Support Offered for Each Level of Co-sponsorship
It is important to emphasize that co-sponsorship does not involve any waiver of
Municipal Code requirements or any other City policies or procedures. Furthermore, co-
sponsorship does not imply the free use of other City services not specifically addressed
in this policy.
1. "A" Level Co-sponsorship
a.The group’s name and contact person may be listed in City publications
including the ENJOY! Catalogue and promotional fliers.
Page 2 of 3
POLICY AND PROCEDURES 1-29/C~SD
December 1995
b. The group may request assistance in publicizing program information.
c.Use of City facilities without payment of rental fee may be provided subject
to availability of space,
do A City staff liaison person may be assigned to consult on special projects and
to maintain ongoing communications at the discretion, of the Director of
Community Services.
2. "B" Level Co-sponsorship
a.The group may request that its name and contact person be, listed in certain
City publications at no charge.
Co
Use of City facilities may be provided subject to availability of space at free
or reduced rates (pertains to rental fee only) on a third priority basis after
City or paid rental use and "A’"level co-sponsorship use. --
A City staff liaison person may be assigned to consult on special projects and
to maintain ongoing communications at the discretion of the Director of
Community Services.
NOTE:Questions and/or clarification of this policy should be directed to the Community
Services Department.
Page 3 of3