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Home My Public Portal AboutORD-CC-2010-24ORDINANCE #2010-24 AN ORDINANCE ENACTING CHAPTER 9.40 OF THE MOAB MUNICIPAL CODE REGARDING UNLAWFUL DISCRIMINATION IN EMPLOYMENT PRACTICES BASED ON SEXUAL ORIENTATION OR GENDER IDENTITY WHEREAS, Moab comprises many diverse groups, communities and individuals, and the City of Moab values this diversity; and WHEREAS, the City of Moab has determined that discriminatory practices can impede the social and economic progress of the City by preventing all people from contributing to or fully participating in the cultural, spiritual, social and commercial life of the community, which is essential to the growth and vitality of the City's neighborhoods and businesses; and WHEREAS, the Utah Anti -Discrimination Act, Utah Code Section 34A-5-101 at seq. addresses employment -related discrimination based on race, color, religion, sex, pregnancy, childbirth or pregnancy -related conditions, national origin, age and disability, but does not address employment -related discrimination based on sexual orientation or gender identity, and WHEREAS, Utah Code Annotated section 10-8-84(1) grants the City of Moab the power to "provide for the safety" , "promote the prosperity ... and comfort and convenience" of "the city and its inhabitants;" and NOW, THEREFORE, the City Council of the City of Moab does hereby ordain as follows: That Chapter 9.40, Moab Municipal Code, pertaining to discrimination in employment practices based upon sexual orientation and gender identity, is enacted to read as follows: Ordinance #2010-24 1 CHAPTER 9.40 EMPLOYMENT DISCRIMINATION Sections: 09.40.010 Purpose 09.40.020 Administration 09.40.030 No Private Right of Action; No Special Rights 09.40.040 Severability 09.40.050 Definitions 09.40.060 Applicability 09.40.070 Unlawful Employment Practices 09.40.080 Unlawful Intimidation and Retaliation 09.40.090 Procedures for Filing Complaints 09.40.100 Investigation 09.40.110 Conciliation 09.40.120 Disposition of a Complaint 09.40.130 Offenses and Penalties 09.40.010 Purpose The purpose of this Chapter is to ensure that every person within the City has the right to seek employment without undue discrimination. Discriminatory employment practices are detrimental because they impede the social and economic progress of the City by preventing all of the City's citizens from contributing to or fully participating in the cultural, spiritual, social and commercial life of the community, which is essential to the growth and vitality of the City's neighborhoods and businesses. While the Utah Anti - Discrimination Act, Utah Code Section 34A-5-101 at seq. addresses employment -related discrimination based on race, color, religion, sex, pregnancy, childbirth or pregnancy - related conditions, national origin, age and disability, it does not address discrimination based on sexual orientation or gender identity. It is further the purpose of this Chapter to provide a clear and comprehensive mandate for the prevention and elimination of discrimination in employment in the City against individuals based upon sexual orientation or gender identity and this Chapter shall be liberally construed to achieve that purpose. 09.40.020 Administration The City Manager is responsible for administering and implementing this chapter. 09.40.030 No Private Right of Action; No Special Rights This Chapter does not create a private cause of action, nor does it create any right or remedy that is the same or substantially equivalent to the remedies provided under Ordinance #2010-24 2 federal or state law. This Chapter does not create any special rights or privileges which would not be available to all of the City's citizens because every person has a sexual orientation and a gender identity. 09.40.040 Severability If any section, sentence, paragraph, term, definition or provision of this Chapter is for any reason determined to be illegal, invalid, superseded by other authority or unconstitutional by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such portion shall be deemed a separate, distinct, and independent provision and such determination shall have no effect on the validity of any other section, sentence, paragraph, term, definition or provision of this Chapter, all of which will remain in full force and effect. 09.40.050 Definitions In this Chapter: A. CITY means all area within the incorporated city limits of the City of Moab, Utah. B. CITY ATTORNEY means the City of Moab's duly appointed City Attorney. C. CITY MANAGER means the City of Moab's duly appointed City Manager. D. CITY OF MOAB means the City of Moab as a corporate entity. E. CITY PROSECUTOR means the City of Moab's duly appointed City Prosecutor. F. COMPLAINANT means a person, including the City Manager, who files a complaint under this chapter. G. CONCILIATION means the attempted resolution of issues raised in a complaint filed under this chapter, or raised in the investigation of the complaint, through informal negotiations involving the Complainant, the Respondent, and the City Manager. H. CONCILIATION AGREEMENT means a written agreement setting forth the resolution of issues by conciliation under this chapter. I. DISCRIMINATION means any direct or indirect exclusion, distinction, segregation, limitation, refusal, denial, or other differentiation in the treatment of a person because of a person's actual or perceived sexual orientation or gender identity or because of a person's association with any such person. Discrimination shall not be interpreted to require or to grant or accord preferential treatment to any person because of that person's sexual orientation or gender identity. J. EMPLOYEE means any individual applying with or employed by an employer. The term does not include an elected official. K. EMPLOYER means any person employing fifteen (15) or more employees in the City for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, and includes any agent of such a person. Ordinance #2010-24 3 L. EMPLOYMENT AGENCY means any person, and any agent of a person, undertaking to procure employees or opportunities to work for any other person in the City or holding itself out to be equipped to procure employees or opportunities to work for any other person in the City. M. GENDER IDENTITY means a person's actual or perceived gender identity, appearance, mannerisms, or other characteristics of an individual with or without regard to the person's sex at birth. N. LABOR ORGANIZATION means any organization that exists for the purpose in whole or in part of collective dealing with Employers concerning grievances, terms or conditions of employment; or other mutual aid or protection in connection with employment. O. OTHERWISE QUALIFIED means a person who possesses the following required by an employer for any particular job, job classification, or position: 1. education; 2. training; 3. ability; 4. moral character; 5. integrity; 6. disposition to work; 7. adherence to reasonable rules and regulations; and S. other job related qualifications required by an employer. P. PERSON means one or more individuals, partnerships, associations, corporations, legal representatives, trusts or trustees, receivers, the City of Moab and Grand County as employers. Q. RELIGIOUS ORGANIZATION means a religious corporation, association, educational institution, society, trust or any entity or association which is a wholly owned or controlled subsidiary or agency of any religious corporation, association, society, trust or corporation sole. R. RESPONDENT means a person identified in a complaint as having committed an unlawful practice under this chapter. S. SEXUAL ORIENTATION means a person's actual or perceived orientation as heterosexual, homosexual, or bisexual. T. UNLAWFUL PRACTICE means a discriminatory act or practice relating to employment that is prohibited under this chapter. 09.40.060 Applicability This chapter does not apply to: A. A religious organization; B. An expressive association whose employment of a person protected by ' this Chapter would significantly burden the association's rights of expressive association under Bay Scouts of America v. Dale, 530 U.S. 640 (2000); the United States Ordinance #2010-24 4 government, any of its departments or agencies, or any corporation wholly owned by it; or C. The United States government, any of its departments or agencies, or any corporation wholly owned by it; or the State of Utah or any of its departments, agencies, or political subdivisions except for the City of Moab and Grand County as corporate entities. 09.40.070 Unlawful Employment Practices A. Employers. An employer may not refuse to hire, promote, discharge, demote, or terminate any person, and may not retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified because of a person's sexual orientation or gender identity. B. Employment agencies. An employment agency may not refuse to list and properly classify for employment, or refuse to refer a person for employment, in a known available job for which the person is otherwise qualified, because of a person's sexual orientation or gender identity. C. Labor organizations. A labor organization may not exclude any person otherwise qualified from full membership rights in the labor organization, expel the person from membership in the labor organization, or otherwise discriminate against or harass any of the labor organization's members in full employment of work opportunity, or representation, because of a person's sexual orientation or gender identity. D. Training programs. An employer, labor organization, joint apprenticeship committee, or vocational school, providing, coordinating, or controlling apprenticeship programs, or providing, coordinating, or controlling on -the -job -training programs, instruction, training, or retraining programs may not deny to, or withhold from, any qualified person, the right to be admitted to, or participate in any apprenticeship training program, on -the -job -training program, or other occupational instruction, training or retraining program, because of a person's sexual orientation or gender identity. E. Notices and advertisements. Unless based upon a bona fide occupational qualification, or required by and given to an agency of government for security reasons, an employer, employment agency, or labor organization may not print, or circulate, or cause to be printed or circulated, any statement, advertisement, or publication, use any form of application for employment or membership, or make any inquiry in connection with prospective employment or membership that expresses, either directly or indirectly any limitation, specification, or discrimination because of a person's sexual orientation or gender identity. It is unlawful for a joint labor-management committee controlling apprenticeship or other training or retraining (including on-the-job training programs) to print or publish, or cause to be printed or published, any notice or advertisement relating to admission to, or employment in, any program established to provide apprenticeship or other training by the joint labor-management committee that indicates any preference, limitation, specification, or discrimination, based on sexual orientation or gender identity. Ordinance #2010-24 5 Nothing in this Chapter prohibits a notice or advertisement from indicating a preference, limitation, specification, or discrimination based on sexual orientation or gender identity when sexual orientation or gender identity is a bona fide occupational qualification for employment. F. No Preferential Treatment. Nothing in this Chapter shall be interpreted to require any employer, employment agency, labor organization, vocational school, joint labor-management committee, or apprenticeship program subject to this Chapter to grant preferential treatment to any person because of the person's sexual orientation or gender identity on account of an imbalance which may exist with respect to the total number or percentage of persons of any sexual orientation or gender identity employed by any employer, referred or classified for employment by an employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of that sexual orientation or gender identity available in the City's available work force. 09.40.080 Unlawful Intimidation and Retaliation It is unlawful for any person to discriminate against, harass, threaten, harm, damage, or otherwise penalize another person for opposing an unlawful practice, for filing a complaint, or for testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under this chapter. 09.40.090 Procedures for Filing Complaints A. Any person who claims to have been injured by an unlawful employment practice subject to the City's jurisdiction under this Chapter may file a complaint with the City Manager. A complaint may also be filed by the City Manager if the City Manager has reasonable cause to believe that a person has committed an unlawful employment practice. A complaint must be filed within 180 calendar days after an alleged unlawful employment practice has occurred. B. A complaint must be in writing on a form provided by the City Manager, made under oath or affirmation, and contain the following information: 1. The Complainant's name, address, and signature; 2. The date the alleged unlawful employment practice occurred; 3. A statement of the facts upon which the allegation of an unlawful employment practice are based; and 4. The Respondent's name and address. C. Promptly after the filing of a complaint, the City Manager shall: 1. Provide the Respondent named in the complaint written notice that a complaint alleging the commission of an unlawful employment practice has been filed against the Respondent; Ordinance #2010-24 6 2. Furnish a copy of the complaint to the Respondent; and 3. Advise the Respondent of the Respondent's procedural rights and obligations, including the right to file a written, signed, and verified informal answer to the complaint within 15 days after service of notice of the complaint. D. Not later than the 15th day after service of the notice and copy of the complaint, a Respondent may file an answer to the complaint. The answer must be in writing, made under oath or affirmation, and contain the following information: 1. The Respondent's name, address, telephone number, and signature of the Respondent or the Respondent's attorney, if any; and 2. A concise statement of facts in response to the allegations in the complaint, including facts of any defense or exception. 09.40.100 Investigation A. Upon the filing of a complaint, the City Manager shall commence an investigation to determine the facts behind the complaint and whether there is reasonable cause to believe the Respondent committed an unlawful employment practice, except that no investigation may commence if, after reviewing the allegations of the complaint, the City Manager determines that the complaint does not come within the scope of this chapter. Upon determining that a particular complaint does not come within the scope of this chapter, the City Manager shall dismiss the complaint, notify the Complainant and Respondent and take no further action. B. In connection with any investigation of a complaint filed under this chapter, the City Manager shall seek the voluntary cooperation of any person to: 1. Obtain access to premises, records, documents, individuals, and any other possible source of information; 2. Examine, record, and copy necessary materials; and 3. Take and record testimony or statements of any person reasonably necessary for the furtherance of the investigation. C. The City Manager may request the issuance of a subpoena or subpoena duces tecum to compel the attendance of a witness or the production of relevant materials or documents. D. The City Manager may dismiss a complaint during the investigation and prior to referral to the City Prosecutor if the City Manager determines that: 1. The complaint was not filed within the required time period; 2. The location of the alleged unlawful employment practice is not within the City's jurisdiction; 3. The employer does not employ a sufficient number of employees in the City to meet this chapter's jurisdictional requirements; Ordinance #2010-24 7 4. The alleged unlawful employment practice is not a violation of this chapter; 5. The Complainant refuses to cooperate with the City Manager in the investigation of the complaint or enforcement of an executed conciliation agreement; &. The Complainant cannot be located after the City Manager has performed a reasonable search; or 7. A conciliation agreement has been executed by the Complainant and Respondent. 8. The Complainant withdraws the complaint by written notice to the City Manager. 09.40.110 Conciliation A. During or after the investigation, but subsequent to the mailing of the notice of the complaint to the Respondent, the City Manager shall, if the Respondent appears to have committed an unlawful employment practice, attempt to conciliate the complaint. In conciliating a complaint, the City Manager shall try to achieve a just resolution and obtain assurances that the Respondent will satisfactorily remedy any violation of the Complainant's rights and take action to ensure the elimination of both present and future unlawful employment practices. A conciliation agreement may include: sensitivity training for the Respondent and/or the Respondent's employees; the Respondent's agreement to adopt and pursue a policy of non-discrimination in employment practices; and the Respondent's agreement to not engage in discriminatory practices in the future. B. A conciliation agreement executed under this section must be in writing in a form approved by the City Attorney and must be signed and verified by the Respondent and the Complainant, subject to approval of the City Manager who shall indicate approval by signing the agreement. C. If a Respondent voluntarily enters into a conciliation agreement, the City Manager shall immediately dismiss the complaint. 09.40.120 Disposition of a Complaint A. If, upon completion of an investigation of a complaint, the City Manager determines that an unlawful employment practice has occurred and is unable to secure an acceptable conciliation agreement from the Respondent, then the City Manager shall file a report with the City Prosecutor for review, issuance of an information, and the initiation of an action in Justice Court. 09.40.130 Offenses and Penalties A person violates this chapter if the person engages in any action made unlawful by this Chapter. An offense committed under this chapter by an employer employing fifty (50) or fewer employees is punishable by a civil fine of not more than $500.00. An offense committed under this chapter by an individual employing fifty-one (51) or more Ordinance #2010-24 8 employees or by an employment agency or labor organization is punishable by a civil fine of not more than $1,000.00. This ordinance shall take effect on January 1, 2011. PASSED ANDAADOPTED by action of the Governing Body of the City of Moab in open session this q day ofttimhewduz472010. ATTEST: Rachel Ellison Moab City Recorder Dave Sakrison Mayor of Moab City Ordinance #2010-24 9 I31TY'OF IIAOAS ORDINANCE'#201.04% 020#11- 1.4, 01601, 010-23. and 201 Q-24. OR DIMNCE*2010HW -AN ORaINANCEAMEND- INN, THE CITY.OF MOAB MUNICIPAL. CODE, CHAPTER 17 72, ADMINISTRATION AND: ENFORCEMENT AAD ESPE- mLLY CHAPTERS y /,72,1.00, THROUGH 1,7.72.240i THAT DEALS 1N FH THE BOARD :OF ADJUSTMEI►1l TOAUG NTHE MOAB MUNICIPAL CODE wrap TFIE UTAHH STATE eOUE, and ORDINANCE # 01;0-1.4 - AN ORDINANOE AMENDING THE or:N OP MOAB MUNICIPAL CODE, WITFf THE,ADDITION OF SECTION 17.09_5e.0, ACCESSO, RY USE OR STRUCTURE; and OBIDINANOE oi0-21AN ORDINANCE TO ADOPT THE 2009 INTERNATIONAL BUILD, JNia CODE PLUS.AP5NDIDESI G &did, 20:09 INTERNATIONAL RESIDENTIAL CODE, 20dai INTERNATIONAL MECHANICAL CODE, Roos NATIONAL ELEe- TRiOAL coin, 2009 INTERNA- TIDNAI...P LAMBING CODE PLUS APPENDIX C, 2009 INTEIRNA: TIONAL FUEL CAS CODE, 2009 INTERNATIONAL ENERGY CONSERVATION CODE, 2i09 INTERNATIONAL PROPERTY MAINTENANOE (BODE, 2009 INTERNATIONAL FARE CODE, 1097 UNIFORM CODE FOR THE +NBATWENT OF DANGEROUS BUILDINGS AND A11i/:1-200 ., and .nnnikf • mom Aioni ii-}4 1 f Proof of Publication STATE OF UTAH, County of Grand, } SS. Zane W. Taylor, being first duly sworn accord- ing to law, deposes and says: That he is the pubisher of The Times -Independent, a weeldy newspaper of general circulation, published every Thursday at Moab, Grand County, State of Utah, and a designated agent of the Utah Press Association; that the notice attached hereto and which is a copy of a City of Moab Ordinances which is made a part of this Affidavit of Publication, was published in said newspaper for a period of 1 consecu- tive issues, the first publication date having been made December 9, 2010 ; and the last on ; and the said notice was published in each and every copy of said newspaper during the period and time of publica- tion, and that it was published in the newspaper proper and not in a supplement thereof, and that said notice was published on Utahlegals.com on the same day as the first newspaper publication and the notice remained on Utah- legals.com throughout the period and time of print pub- lication. Publisher Subscribed and sworn before me this Notary Public Residing in Moab, Utah My Commission Expires SADIE WARNER Notary Pubi c stare of Utah My Comm,ssiol F.Ap;res on_ November i, 2013 Comm. Number. 581356