Ordinance for Equal Treatment
FACTS ABOUT SOUTH BEND'S ORDINANCE FOR EQUAL TREATMENT REGARDLESS OF SEXUAL ORIENTATION AND GENDER IDENTITY
On March 26, 2012 the South Bend Common Council added "sexual orientation" and "gender identity" to the Human Rights Ordinance. This law (Ordinance No. 10154-12) went into effect April 6, 2012. A citizen of South Bend cannot be deprived of equal rights and equal opportunity in employment, housing and public accommodations because of gender identity or sexual orientation.
While this law was being considered, it generated many questions, and also misunderstanding, about its reach and effect. This Fact Sheet addresses some of these questions and concerns.
Question: What are "Sexual Orientation" and "Gender Identity"?
Answer: The Ordinance defines "Sexual Orientation" as "an individual's actual or perceived identity or practice as a lesbian woman, gay man, bisexual person or heterosexual person."
"Gender identity" means an individual having or being perceived as having a gender-related self-identity, self-image, appearance, expression or behavior different from those characteristics traditional associated with the individual's assigned sex at birth.
Question: What Must a Person Prove to Succeed in a Claim for Discrimination Because of Sexual Orientation or Gender Identity?
Answer: The law which protects persons who experience discrimination due to sexual orientation and gender identity is interpreted the same as for claims of race, sex, color, disability and national origin discrimination. Always, it is the claimant who must prove that discrimination occurred.
The claimant must show that he or she:
- Was treated adversely, and not equally, in employment, home rental, home ownership, or in a place open to the public for business, entertainment or services;
- Because of his or her sexual orientation or gender identity and not for some unrelated reason (such as poor job performance or absenteeism in employment, lack of loan qualification for housing; or disruptive behavior in public accommodation).
If the Respondent shows that the non-discriminatory reason more likely caused the adverse action - such as demotion, refusal to sell, refusal of service - the claimant will not succeed. Discrimination involves treating someone adversely in hiring, promotions or discipline because of a sexual or gender identity stereotype and not because of his/her ability to perform the job, or qualify for housing. Example: Male transsexual considered not strong enough to be a supervisor denied promotion due to this stereotype; Lesbians denied housing because children of heterosexual couples live in housing unit.
Question: What is Workplace Harassment as Applied to Sexual Orientation and Gender Identity?
Answer: This is also known as hostile environment discrimination, but it is not enough that occasional jokes or "boorish demeaning banter" occur in the workplace. The harassing conduct must be so pervasive and continuous that it affects an employee's ability to perform his/her job. It can include sexual jokes, teasing, name calling, personal questions, sexually suggestive or distasteful photos directed to a person's sexual orientation or gender identity. The aggrieved employee must report the conduct and the employer must take prompt, remedial action to eliminate the harassment. Failure of an employer to do so can result in a claim of discrimination, although an employer is not required to provide the exact remedy requested by the employee.
Question: Does the Human Rights Ordinance Require Employers to Treat Partners of Gay and Lesbian Persons the Same as Spouses in Terms of Insurance and Other Benefits?
Answer: No. the South Bend Human Rights Ordinance specifically states:
The protections in this Article against discriminatory practices regarding sexual orientation or gender identity in employment shall not be construed to require that health care plans, insurance, pension, or similar additional benefits provided by employers and benefiting the spouses of employees be extended to non-married domestic partners of any employee.
Question - Are Churches, Religious Schools and Other Religious Based Organizations Which Have Moral, Religious Dogma, or Similar Principles About Same Sex Relationships Required to Comply with South Bend's Ordinance?
Answer: The South Bend Ordinance provides that religious based organizations cannot be deprived of their constitutional right to the free exercise of religion, and a good faith, sincerely held moral belief, mission or religious practice may provide a defense to a religious society, association, organization, or institution under certain circumstances. This will be handled by the Human Rights Commission in its investigation of a claim on a case-by-case basis.
Question: Are all Landlords and Employers Located in South Bend Subject to the Ordinance?
Answer: No. small size employers who have fewer than six (6) employees are not covered, nor are private membership clubs, any state hospital or state agency, university, or institution. Also excluded as employers are religious operated or affiliated churches, schools, or charitable institutions which hire employees of a particular religion.
Small landlords who do not own more than three (3) single family houses at one time are not covered by the law, nor is an owner of a multi-unit building if the owner occupies one of the units and there are no more than four ( 4) families living independently in the building unit. Example: the owner of a duplex-is not covered by the South Bend ordinance if the owner lives in the building.
Question: What Happens if the Human Rights Commission Finds that Discrimination Occurred Due to Sexual Orientation and/or Gender Identity?
Answer: The Human Rights Commission will invite both sides to conciliate, or mediate the dispute in an effort to provide a voluntary, mutually acceptable solution to the problem. lf that fails, the complainant may seek court enforcement to the extent permitted by law.