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Human Rights Ord.clarificationMEMORANDUM June 22,2002 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Clarification on Proposed Ordinance Changes On June 3, 2002, Human Rights Director Kelly Larson forwarded for City Council consideration some proposed changes to the Human Rights Ordinance. The City Council tabled the agenda item and requested clarification of the changes being proposed. Submitted herewith is a revised copy of the strikeout version of the ordinance, with comments following each section where changes are proposed. Human Rights Director Kelly Larson is recommending adoption of the amendment to Chapter 27, "Human Relations," of the Code of Ordinances of the City of Dubuque. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Kelly Larson, Human Rights Director CITY OF DUBUQUE, IOWA MEMORANDUM June 18, 2002 TO: Michael Van Milligen, City Manager FROM: Kelly Larson, Human Rights Director SUBJECT: Clarification on Proposed Ordinance Changes Introduction: The purpose of this memorandum is to re-submit for City Council consideration amendments to Chapter 27 of the Dubuque Code of Ordinances, entitled "Human Relations." Background: On June 3, 2002, we forwarded for City Council consideration some proposed changes to the Human Rights Ordinance. The City Council tabled the agenda item and requested clarification on the changes that are being proposed. Attached please find a revised copy of the strikeout version of the ordinance, with comments following each section where changes are proposed. Requested Action: The requested action is for the City Council to adopt the attached ordinance amending Chapter 27, "Human Relations," of the Code of Ordinances of the City of Dubuque at its July 1, 2002 City Council meeting. Attachments Chapter 27 Human Relations ARTICLE I. IN GENERAL Sec. 27-1. Definitions: When used in this Chapter, the following terms shall have the meanings ascdbed herein unless the context otherwise requires: Court: The Iowa District Court ::': ........... j ................................ for Dubuque County. Person: Qr~a-e~mere An individuals, partnerships, associations, corporations, legal representatives, trustees, receivers, any other leqal entity and the State and all political subdivisions and agencies thereof. Unfair Practice Or Discriminafory Practice: Those practices specified as unfair or discriminatory in Article~_ IV .and VI of this Chapter. (1976 Code, § 21-1; Ord. 34-92, § 1, 5-18-1992; Ord. 39-96, § 1, 7-1-1996) Comments: Section 27-1 contains definitions applicable to Chapter 27. In defining "Court," we struck "in and for the judicial district of the State of Iowa" because it is redundant - there is no change in the meaning. We made the definition of "Person" singular and added 'any other legal entity" to insure inclusion of all forms of potential respondents. In defining "Unfair Practice or Discriminatory Practice," we added the reference to Article VI because it was omitted in error. Article VI prohibits housing discrimination. When Article VI was added to the ordinance, this definition should have been changed to include reference to that article. ARTICLE II. HUMAN RIGHTS COMMISSION Sec. 27-23. Meetings: (b) The chairperson, the vice chairperson, or any three (3) members of the Commission may call a special meeting by giving at least ene-slear-day twenty four hours notice to every member of the Commission. The call for a special meeting shall include an agenda, and only matters included in that agenda may be discussed acted o__~n at the meeting. Comments: We changed the notification requirement from ~one clear day' notice to 'twenty four hours" notice for clarification. We changed "discussed" to 'acted on" because we do not believe there is a general prohibition on discussion, but instead a prohibition on taking action on matters that have not been included on the agenda. Sec. 27-27. Powers And Duties: The Commission created by this Article shall have the following powers and duties: (4) To issue such publication and reports of investigations and research as in the judgment of the commission shall promote civil and respectful behavior which shall tend to eliminate discrimination ' "'"'"" '~ ..... '~"+~ ......' ..... * ......*~....oh;,. ~,..~ (6) To make recommendations to the city council for such further legislation concemlng dlSCnnmnatlon ............ , ..... , ...., ....... 4~,.,,.,..] ,~,~,.;.. ~...~;,.. (7) To cooperate, within the limits of any appropriations made for its operation, with other agendes or organizations, both public and private, whose purposes are consistent with those of this chapter, and in the planning and conducting of programs designed to eliminate mc-ial~.~ligieus discrimination or cultural and intergroup tension. Comments: Section 27-27 generally describes the powers and duties of the commission. We have made some changes to this section to be consistent with actual practices. In sub-sections (4) and (5), we removed reference to the specific areas and bases protected by the ordinance because the Commission historically has taken action to evaluate and make recommendations in areas beyond those already covered by the ordinance; for example, the Commission has in the past evaluated and made recommendations regarding whether or not to add sexual orientation to the ordinance. In addition, the Commission strives to broadly encourage civil and respectful behavior in general, not only in areas specifically covered by the ordinance. The changes to this section do not affect the enforcement ability of the Commission - that remains restricted by the specific sections of the ordinance describing what constitutes illegal discrimination. The changes only affect the breadth of the Commission's ability to issue reports and recornrnendations. In subsection (7), we omitted reference to racial and religious tension and instead referred to "discdrnination" in general because we could not understand why cooperation with other agencies should be limited to only to racial and religious grounds. Sec. 27-29. Subpoenas: The commission may issue subpoenas and order discovery in aid of investigations under this chapter. Such subpoenas and discovery may be ordered to the same extent bject t ld apply ~*k .... k ........,4~ .............. and su o the same limitations as wou ......... ,. ................ j ..... ...,~,..,~,~ ....... ., ~...~;~ ...~ ....,.,~, ..,~,... ,.. ,k~, .... '~'"*'~"* ccurt for county attorney subpoenas. (Ord. 5-95, § 1, 1-3-1995} Comments: This section describes our subpoena power. We deleted the reference to discovery subpoenas in civil actions and substituted a reference to county attorney subpoenas. As an enforcement agency, our process is mere analogous to the county attorney's process than to an adversarial civil proceeding. We are not an adversarial party engaging in discovery; we are a neutral party investigating for enforcement. The county attorney process allows us to question witnesses without those witnesses being influenced by a party to the proceeding, whereas the civil process would allow a party to be present dudng the questioning. If we were required to allow a party to be present during investigation, we would have concerns about intimidation and our ability to obtain accurate information free from a party's influence. ARTICLE IV. UNFAIR AND DISCRIMINATORY PRACTICES DMSION 1. IN GENERAL Sec. 27-51. Aiding Or Abetting: It shall be an unfair or discriminatory practice for: (1) Any person to intentionally aid, abet, compel or coerce another person to engage in any of the practices declared unfair or discdrninatory by this a~cqe chapter. (2) Any person to discriminate against another person in any of the dghts protected because such person has lawfully opposed any practice forbidden under this ....... chapter, obeys the provisions of this a~ide chapter, or has filed a complaint, testified or assi,sted in any proceeding under this chapter. Comments: Section 27-51 prohibits aiding and abetting, and also prohibits retaliation against persons who exercise their dghts under Chapter 27. We have broadened the scope of this section to refer to the entire chapter instead of referring solely to Article IV because we believe the limitation to Article IV was unintentional. Originally, all of the unfair and discriminatory practices were included solely in Article IV, so referring to the rest of the Chapter was unnecessary. When we added additional unfair and discriminatory practices by passing Article VI, Fair Housing, we should have broadened section 27-51 to include these practices. This change insures protection against retaliation for someone who files a fair housing complaint or participates in a fair housing investigation. In subsection (2), we removed the reference to the specific bases because it is redundant: "the rights protected by this chapter" necessarily is limited to the specific bases listed in the other portions of the ordinance that describe what is and is not protected. Sec. 27-52. Sex And Age Discrimination Provisions Not Applicable To Retirement Plans; Exception: The provisions of this chapter relating to discrimination because of sex or age shall not be construed to apply to any retirement plan or benefit system of any employer unless such plan or system is a more subterfuge adopted for the purposes of evading the provisions of this chapter. (1) However, a retirement plan or benefit system shall not require the involuntary retirement of a person '""~"- *h~, "~ .......... j ,. v, because of that person's age. b ................. ~ ................ ~C~c,", ........ j .............. = ....... j Comments: Section 27-52 contains an exemption that allows forced retirement for individuals of certain ages. These provisions were included in the ordinance for consistency with federal law, which used to have a "cap" on age discrimination claims of 70 years of age. The federal law has since changed, and we believe that our ordinance, too, should be changed so that it no longer allows forced retiremont of older persons. DIVISION 2. ACCOMMODATIONS OR SERVICES Sec. 27-61. Prohibited Practices: It shall be an unfair or discriminatory practice for any '"""'~' ' ........ propn ........... ~., ....... '~"*~"'~"* ''~ ....... k. ...... .... ~.,~] .........person. To refuse or deny to any person because of race, creed, color, sex, age, national origin, or religion the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, age, national odgin or religion in the fumishing of such accommodations, advantages/facilities, services or privileges. (2) To directly or indirectly advertise or in any other manner indicate or publicize that the patronage of persons of any particular race, creed; colOr, sex, age, national origin or religion is unwelcomo, objectionable, not acceptable, or not solicited. Comments: Section 27-6'1 contains the general prohibition against discrimination at places of public accommodation. Here we suggested a reference to "person" because it is more concise than listing out a vadety of conceivable positions a potential respondent might hold. The definition of "person" would include the types of positions we have stricken. Thus, there is no substantive change in coverage and the section is more concise. DIVISION 3. EMPLOYMENT PRACTICES Sec. 27-72. Exemptions From Division: This Division shall not apply to: (1) Any employer who regularly employs less than four (4) individuals. For purposes of this sub * '~'~'~'"'~ '"~' ...... '"~'~' "~ ~' .... ~ .... '~" ~'"~" section, in ...................................... ~,,.-J .......... j the owner(s), the owner(s)' spouse(s), and children shall not be counted as employees. (2) The employment of individuals for work within the home of the employer if the employer or members of the employer's family reside therein dudng such employment. (3) The employment of individuals to render personal service to the person of the employer or members of the employer's family. (4) Any bona fide religious institution with respect to any qualifications for employment based on religion when such qualifications are related to a bona fide religious purpose. A religious qualification for instructional personnel or an administrative officer serving in a supervisory capacity of a bona fide religious educational facility or religious institution shall be presumed to be a bona fide occupational qualification. (5) Discrimination on the basis of age if the person subject to the discrimination is under the age of eighteen (18) years, unless that person is considered by law to be an adult. ($) A State or Federal program designed to benefit a specific age classification which serves a bona fide public purpose. (7) Comments: Section 27-72 discusses exemptions to the general prohibition against discrimination in employment. Subsection (1) essentially exempts small businesses from the law that prohibits employment discrimination. In determining whether a business is small enough to be exempted, members of the employer's family are not counted. Because there is no definition of "family," it could conceivably include any relative no matter how distant. We have suggested removing the reference to ffamily" and clarifying that the owner or owners, and their spouses and children, would not be counted. This provides clear direction for our office and the public in evaluating whether or not a business has enough employees to be covered by the ordinance. Subsection (7) provided an exemption to allow some age discrimination in apprenticeship programs. This section has never been utilized since it was originally enacted. DIVISION 4. DISABILITY DISCRIMINATION Sec. 27-81. Employment Prohibited Practices: (a) General Rule: No eeveced-erA~ person shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hidng, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Comments: Section 27-81 generally prohibits discrimination in employment based upon disability. We changed the reference from "covered entity" to "person" for cladty and for consistency with section 27-71. Section 27-71 is the section that prohibits employment discrimination on all bases other than disability, and that section refers to "person" rather than "covered entity." Sec. 27-82. Defenses, Exemptions And Exclusions: (a) Defenses: (1) In General: It may be a defense to a charge of discrimination under this Division that an alleged application of qualification standards, tests, or selection criteda that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplish by a reasonable accommodation, as required under this Chapter. (2) Qualification Standards: The term qualification standards may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (3) Reasonable Accommodation and Good Faith Effort: In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to this subsection, actual damages other than damages for back pay may not be awarded under this Chapter where the covered entity proves, by a preponderance of the evidence, good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual ~th an equally effective opportunity and would not cause an undue hardship on the operation of the business. 4_) List Of Infectious And Communicable Diseases: a. Applications: In any case in which an individual has an infectious on communicable disease that is transmitted to others through the handling of food that is included on the list developed by the Secretary of Health and Human Services under 42 USC 121 '13(d) and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling. b. Construction: Nothing in this Division shall be construed to preempt, modify, or amend any local law, ordinance, or regulation applicable to food handling w'nich is designed to protect the public health from individuals who pose a significant dsk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or cornmunicable diseases and the medes of transmissibility published by the Secretary of Health and Human Services. (b) Exemptions: This Division shall not apply to: (1) Any employer who regularly employs less than four (4) individuals. For purposes · ~..~..;.~..--, .... ~- ...... ~-~-'~ ......... ~..~ .......... . the of this subsect on, .............................. owner(s) and the owner(s)' spouse{s) and children shall not be counted as employees. (2) The employment of individuals for work ~thin the home of the employer if the employer or members of the employer's family reside therein during such employment. (3) The employment of individuals to render personal service to the person of the employer or members of the employer's family. (4) An employer's qualifications for a job may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (~ Exdus~n~ (1) Homosexuality and Bisexuality: For purposes of the definition of disability in Section 27-1, homosexuality and bisexuality are not impairments and as such are not disabilities under this Division. (2) Certain Conditions: Under this Division, the term disability shall not include: Transvestism, transsexualism, pedophitia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; b. Compulsive gambling, kleptomania, or pyromania; or Psychoactive substances use disorders resulting from current illegal use of drugs. Comments: Section 27-82 contains exemptions, defenses, and exclusions related solely to claims of disability discrimination. Under "defenses," we removed the "religious entity" defense because it is unnecessary to provide such a defense for a claim of disability discrimination. In order to prove discrimination based on disability, the individual must show that his or her disability was the reason for the adverse employment action. If the reason for the adverse action was religion, then, by definition, there is a failure to prove discrimination based on disability - the defense is unnecessary. The only time where such a defense would be necessary would be when a religious institution is accused of religious discrimination. The defense remains present in a separate section, 27-72, which would apply in cases alleging religious discrimination in employment. Under "exemptions" there is a provision that exempts small businesses, nearly identical to the exemption contained at section 27-72 amended above. As discussed above, in determining whether a business is small enough to be exempted, members of the employer's family are not counted. Because there is no definition of ~family," it could conceivably include any relative no matter how distant. We have suggested removing the reference to "family" and clarifying that the owner or owners, and their spouses and children, would not be counted. This provides clear direction for our office and the public in evaluating whether or not a business has enough employees to be covered by the ordinance. Sec. 27-84. Illegal Use Of Drugs And Alcohol: ~- ...... .*..~,.- =.""~ ...... Governmental Reoulations: Nothing in this Chapter (e) ..... w- ............. ~.,v. .... ,~ shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Iowa Department of Transportation or any other state or federal aRency of authority to: (1) Test employees of such entities in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and (2) Remove such persons who test positive for illegal use of drugs and on- duty impairment by alcohol pursuant to subsection (1) above from safety- sensitive duties in implementing subsection © above. Comments: In this section, we changed the reference to "'l-mnsportation Employees" and instead referred generally to "governmental regulations" and "any other state or federal agency" in order to cladfy that, to the extent any governmental agency has regulations that allow drug and alcohol testing, our ordinance does not purport to interfere with that authority. Sec. 27-85. Public Accommodations Prohibited Practices: (a) It shall be an unfair or discriminatory practice for any person ~ (or I ..... j, cr .... * ......~..~..,,~-'~ ....... .~wv,... ,.....~..~.'~*~"", on the basis of disability to refuse or deny full and equal enjoyment of the goods, services, facilities, privileges, advantages, or other public accomrnodations. (c) It shall be an unfair or discriminatory practice for any person wfle~wns~eases (ct ' ..... *"~ ....... * ...... ~"~ ....... '~'~ to discriminate against an individual or class of individuals in any of the following: Comments: This section generally prohibits disability discrimination in places of public accommodation. Other sections of our ordinance make it illegal for any "person" to discriminate. We attempted'to make this section consistent with other sections by removing reference to owning, leasing, or operating, and instead stating simply that it is illegal for any person to deny services based on disability. ARTICLE V. ENFORCEMENT OF CML RIGHTS Sec. 27-111. Filing Complaiii[~: (a) All persons claiming to be aggrieved by a discriminatory or unfair practice within this ' k,, +~,-,-~-,, ...... ~,,~ City may, ..~ ................... sign and file with the Commission a vedfied, written complaint in triplicate which shall state the name and address of the person empleye~, --,-~,-~ ..... * ........ ~'-~- ....... ~'-'-*;-'" alleged to have committed the discriminatory or unfair practice of which complained, shall set forth the particulars thereof, and shall contain such other information as may be required by the Commission. The Commission, a commissioner, or the City Attorney may in like manner make, sign, and file such complaint. (b) A person who has tested positive for Human Immunodeficiency Virus or who has a diagnosis of Acquired Immune Deficiency Syndrome or a person who is perceived to have Human Immunodeficiency virus or Acquired Immune Deficiency may file a disability charge utilizing "John Doe," "Jane Doe," or a coded number to protect the person's identity. The name of the charging party shall be disclosed to the respondent. It shall be a discriminatory practice for any person to disclose the name of the coded person or information that would lead to that person's identity. Comments: This section describes the complaint filing process. We removed reference to "employer, employment agency, or labor organization" and referred only to "person" because the definition of "person" includes all of these other entities. We removed reference to "making" a complaint, because when a complaint is signed and filed it has been "made." We did not think it necessary to state that persons can make a complaint "by themselves," because in the absence of an explicit statement that they must have assistance in making the complaint, it is implicit that they can pursue the process on their own. Sec. 27-114. Commission Staff Proceedings On Complaints: (a) Notice to Respondenh After the filing of a verified complaint, a true copy shall be served within twenty (20) days by certified mail on the person against whom the complaint is filed. (b) Screening: The director shall review each complaint and is authorized to administratively close a case when the director finds any of the followin,q: i. Lack of iudsdiction; ii. Minimal impact on civil d.qhts in the community; or iii. further processin,q is not warranted. (b c.g.) Investigation By Staff;, Probable Cause Determination By Administrative Law Judge: An authorized member of the Commission staff shall make a prompt investigation and shall issue a recommendation to an administrative lawjudga under the jurisdiction of the Corn~ssion, who shall then issue a determination of probable cause or no probable cause. (1) For purposes of this Code, an administrative law judge issues a determination of probable cause or no probable cause under this Section shall be exempt from section 17A.17 of the State Code of Iowa. (2) If the administrative law judge concurs with the investigating official that probable cause exists regarding the allegations of the complaint, the staff of the Commission shall promptly endeavor to eliminate the discriminatory or unfair practica by conference, conciliation and persuasion. If the administrative law judge finds that no probable cause exists, the administrative law judge shall issue a final order dismissing the complaint. The commission c,",d shall promptly mail a copy to the complainant and to the respondent by certified mail. A finding of probable cause shall not be introduced into evidence in an action brought under Section 27-117. (G d_) Conciliation Conference And Persuasion Procedures: The Commission staff must endeavor to eliminate the discriminatory or unfair practica by conciliation conference and persuasion for a period of thirty (30) days following the initial conciliation meeting between the respondent and the Commission staff after a finding of probable cause. After the expiration of thirty (30) days, the Director may order the conciliation conference and persuasion procedure provided in this Section to be bypassed when the Director determines the procedure is unworkable by reason of past patterns and practices of the respondent, or a statement by the respondent that the respondent is unwilling to continue with the conciliation. Th.e D!;c.-'t.c; m,~'=t have the ....... ~ ....... '~ .... Upon the bypassing of conciliation, the Director shall state in writing the reasons for bypassing. (1976 Code, § 21-80; Ord. No. 45-89, § 1, 9-5-1989) Comments: This section describes the process to be followed once a complaint is filed. We have made several changes to this section to more accurately describe our actual practices. First, we added a new section (b) to describe our screening process. Our administrative rules already provide for this type of screening, and screening has generally been recognized by the courts as valid. However, the authority for this process was not specifically described in the ordinance. We believe it is best to include the authority directly in the ordinance, and doing so provides better notice to the public on our screening standards. Second, in subsection (c)(2), we stated that ~he commission" would mail notice of the ALJ decision because, in practice, we mail the notice from the office and do not have the ALJs mail the notice directly as stated in the current ordinance. Third, in subsection (d), we removed the requirement that the Director have a commissioner's approval before bypassing conciliation. Because our commissioners must serve as decision makers in the public hearing process, they are not provided any substantive information about a case until the hearing is held. At the stage where conciliation is being bypassed, they have no knowledge of the details of the case, and cannot be provided such knowledge without compromising their objectivity for an upcoming hearing. As result, seeking their approval for bypass of conciliation is basically a formality- they do not have any information that would allow them to make a substantive decision about whether or not the case should proceed to public hearing. Sec. 27-116. Commission Orders: (a) Upon Hearing Finding of Discriminatory, Unfair Practica: If, upon taking into consideration all of the evidence at a hearing, the Commission determines that the respondent has engaged in a discriminatory or unfair practice, the Commission shall state its findings of fact and conclusions of law and shall issue an order requiring the respondent to cease and desist from the discriminatory or unfair practice and to take the necessary remedial action as in the judgment of the Commission will carry out the purposes of this Chapter. ^ copy of the order shall be delivered to the respondent, the complainant, and to any other public officer and persons as the Commission deerc~ proper. Remedial Actions: For the purposes of this subsection and pursuant to the provisions of this Chapter, "remedial action" includes, but is not limited to, the following: Hiring, reinstatement or upgrading of employees with or without pay. Interim earned income and unemployment compensation shall operate to reduce the pay otherwise allowable. Admission or restoration of individuals to a labor organization, admission to or participation in a guidance program, apprenticeship training program, on-the-job training program or other occupational training or retraining program, with utilization of objective criteria in the admission of individuals to such programs. Admission of individuals to a public accommodation or an education institution. Sale, exchange, lease, rental, assignment or sublease of real property to an individual. Extension to all individuals of the full and equal enjoyment of the advantages, facilities, privileges and services of the respondent denied to the complainant because of the discriminatory or unfair practice. f. Reporting as to the manner of compliance. g= Posting notices in conspicuous places in the respondent's place of business in form prescribed by the Commission and inclusion of notices in advertising material. Payment to the complainant of damages for an injury caused by the discriminatory or unfair practica, which damages shall include, but are not limited to, act'.-'3! damages, cou,'t. ~-'~'sts and reasonable attorney's fees. i. Reimbursement to the commission for contested case costs. Comments: This section describes the remedies available upon a finding of discrimination. We have removed reference to "court costs" because there are no "court costs" in an administrative proceeding. There are contested case costs, which are paid by the city, and we have included a new subsection (i) to specifically allow for reimbursement to the city for those costs. (2) Requirements To Cease And Desist, Certffica#ons To Licensing And Contracting Agencies: In addition to the remedies provided in the preceding provisions of this Section, the Commission may issue an order requiting the respondent to cease and desist from the discriminatory or unfair practice and may take such affirmative action as in the judgment of the Commission will carry out the purposes of this Chapter as follows: In the case of a respondent operating by virtue of a license issued by the State or a political subdivision or agency, if the Commission, upon notica to the respondent with an opportunity to be heard, determines that the respondent has engaged in a discriminatory or unfair practica and that the practice was authorized, requested, commanded, performed or knowingly or recklessly tolerated by the Board of Directors of the respondent or by an officar or executive agent acting within the scope of such officar's or executive agent's employment, the Commission shall so cartify to the licensing agency. Unless the Commission finding of a discriminatory or unfair practica is reversed in the course of judidal review, the finding of discrimination is binding on the licansing agency. In the case of a respondent who is found by the Commission to have engaged in a discriminatory or unfair practice in the course of performing under a contract or subcontract with the State or political subdivision or agency, if the practice was authorized, requested, commanded, performed, or knowingly or recklessly tolerated by the Board of Directors of the respondent or by an officar or executive agent acting within the scope of such officar's or executive agent's employment, the Commission shall so cattily to the contracting agency. Unless the Commission's finding of a discriminatory or unfair practica is reversed in the course of judicial review, the finding of discrimination is binding on the contracting agency. Comments: This section gives the Commission authority to notify licensing agencies and contracting agencies of findings of discrimination against respondents covered by such agencies, we have removed statements describing the actions that the licensing or contracting agencies may then take based on that information, because we believe that those determinations must by made in accord with the statutes and regulations that govern those particular agencies. Sec. 27-117. Sixty Day Release From Administrative Process, Alternative Judicial Proceedings Upon Complaints: (a) Cond~ions For Release: A person claiming to be aggrieved by an unfair or discriminatory practice must initially seek an administrative relief by filing a complaint with the Commission in accordance with Section 27-111. A complainant, after-the prc~. ........ ~ ~............~.~..~ ..~h ~.~ r-...~,~..., may subsequently commence an action for relief in the district court if all of the following conditions have been satisfied: (1) The complainant has timely filed the complaint with the Comission as provided in Section 27-113. (2) The Complainant has been on file with the Commission at least sixty (60) days and the Commission has issued a release to the complainant pursuant to subsection (b) of this section. Comment: This section describes the conditions for obtaining a "dght to sue." In section (a), we removed the requirement of proper filing of a complaint, because that requirement is explicitly stated as a condition in subsection (1). (b) Requirements for Issuance of Release: Upon a request by the complainant, and after the expiration of sixty (60) days from the timely filing of a complaint with the Commission, the Commission shall issue to the complainant a release stating that the complainant has a right to commence an action in the district court. A release under this subsection shall not be issued if a finding of no probable cause has been made on the complaint by the administrative law judge charged with the duty under Section 27- 114, or a conciliation agreement has been executed, or the Commission has served notice of hearing upon the respondent, or the complaint is closed as an administrative closure and two (2) years have elapsed since the issuance date of the closure. Notwithstanding Section 27-26, a party may obtain a copy of all documents contained in a case file where the Commission has issued a release to the complainant pursuant to this subsection. (c) Failure to Timely Seek Judicial Relief after Release; Release as Bar to Further Administrative Action on Complaint: An action authorized under this Section is barred unless commenced within ninety (90) days after issuance by the Commission of a release under subsection (b) of this Section. If a complainant obtains a release from the Commission under subsection (b) of this Section, the Commission shall be barred from further action on that complaint. (d) Venue for Court Action on Complaint: Venue for an action under this Section shall be in Dubuque County. (e) Remedies In Jucficial Proceedings; Attorney's Fees And Costs: The district court may grant any relief i= act!c,", under this Section which is authorized by Section 27-116 to be issued by the Commission. The district court may also award the respondent reasonable attorney's fees and court costs when the court finds that the complainant's action was frivolous. (f) It is the legislative intent of this Section that every complaint be at lease preliminarily screen during the first sixty (60) days. This subsection does not authorize administrative closures if an investigation is warranted. Comment: This section describes the judicial proceeding. We removed reference to ~ln action" in subsebt'on (e) because it is unnecessary - it is a standard rule of law that a court must have an "action" before it in order to issue a remedy. Sec. 27-119. Procedural Rules: 21 85) See Sec. 27-22. Comments: We removed this section because it is a repeat of section 27-22. Sec. 27-121. Rule Of Construction: This Chapter shall be construed liberally to effectuate its purpose. (Ord. 20-93, § 7, 4- 19-1993) Comment: It is our practice, and a standard practice in civil dghts, to construe statutes liberally to effectuate their purposes. We added to work "liberally" to be explicit about this practice. ARTICLE VI. FAIR HOUSING Sec. 27-130. Deft nitions: As used in this Article: Person: Includes erie-er-mere an individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual ~ company, joint-stock r=~mpanies company, trusts, unincorporated organizations, trustec-s, trustees in cases under title 11 (of the United States Code), receivers and ~ fiduciary or any other le.qal entity. Comments: The section contains the definition for the fair housing portion of the ordinance. As with the definition of "person" in section 27-1, we changed the definition here by making it singular and adding "any other legal entity" to insure inclusion of all forms of potential respondents. Preparer: William G. Blum Address: Suite 330~ HarborView Place 300 Main Street Dubuque~ IA $200'1-6944 Telephone: (563} 557-13'10 ORDINANCE NO. 51-02 AN ORDINANCE AMENDING THE CITY OF .DUBUQUE CODE OF ORDINANCES SECTION 27-1 BY SUBSTITUTING NEW DEFINITIONS FOR "COURT," "PERSON," AND "UNFAIR PRACTICE OR DISCRIMINATORY PRACTICE"; BY AMENDING SECTION 27-23(b) RELATING TO MEETINGS; BY AMENDING SECTION 27-27(4), (6) AND (7) CLARIFYING THE POWERS AND DUTIES OF COMMISSIONERS; BY AMENDING SECTION 27-29 RELATING TO THE ISSUANCE OF SUBPOENAS; BY AMENDING SECTION 27-51(1) AND (2) RELATING TO ILLEGAL "AIDING OR ABETTING"; BY AMENDING 27-52(1) CONCERNING INVOLUNTARY RETIREMENT OF PERSONS; BY AMENDING SECTION 27-61 CONCERNING PROHIBITED PRACTICES IN ACCOMMODATIONS OR SERVICES; BY AMENDING SECTION 27- 72 EXEMPTIONS FROM EMPLOYMENT PRACTICES; BY AMENDING SECTION 27- 81(a) RELATING TO EMPLOYMENT PROHIBITED PRACTICES; BY AMENDING SECTION 27-82 CONCERNING EXEMPTIONS TO DISABILITY DISCRIMINATION BY RELIGIOUS ENTITIES AND THE FAMILY EXEMPTIONS AND THE EMPLOYMENT PROHIBITIONS; BY AMENDING SECTION 27-84(e) WHICH CHANGES "TRANSPORTATION EMPLOYEES" TO "GOVERNMENTAL REGULATIONS"; BY AMENDING SECTION 27-85(a) RELATING TO PROHIBITED PRACTICES IN PUBLIC ACCOMMODATIONS AND SECTION 27-65(c) RELATING TO PROHIBITED PRACTICES IN PUBLIC ACCOMMODATIONS; BY AMENDING SECTION 27-111 CLARIFYING WHO CAN FILE CIVIL RIGHTS COMPLAINTS; BY AMENDING SECTION 27-114 CLARIFYING THE ABILITY OF THE DIRECTOR TO SCREEN COMPLAINTS; BY AMENDING SECTION 27-116(a) CONCERNING THE REMEDIAL ACTION IN CONTESTED CASES; BY AMENDING SECTION 27-117 CLARIFYING THE SECTION AND BY DELETING EXTRANEOUS WORDS; BY REPEALING SECTION 27-119 PROCEDURAL RULES; BY AMENDING SECTION 27-121 CONCERNING HOW THE CHAPTER IS T.O BE CONSTRUED; AND BY SUBSTITUTING A NEW DEFINITION OF "PERSON" IN SECTION 27-130. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Section 27-1 of the City of Dubuque Code of Ordinances is amended by substituting the following definitions: Court: The Iowa District Court in and for Dubuque County. Person: An individual, partnership, association, corporation, legal rePresentative, trustees, receiver, any other legal entity and the State and all political subdivisions and agencies thereof. Unfair Practice or Discriminatory Practice: Those practices specified as unfair or discriminatory in Articles IV and VI of this Chapter. Section 2. Subsection 27-23(b) of the City of Dubuque Code of Ordinances is amended to read as follows: (b) The chairperson, the vice chairperson, or any throe (3) members of the Commission may call a special meeting by giving at least twenty-four (24) hours notice to every other member of the Commission. The cell for a special meeting shall include an agenda, and only matters included in that agenda may be acted on at the meeting. Section 3. Section 27-27(4), (6) and (7) of the City of Dubuque Code of Ordinances aro amended to read as follows: (4) To issue such publication and roports of investigations and research as in the judgment of the commission shall promote civil and respectful behavior which shall tend to eliminate discrimination. (6) To make recommendations to the city council legislation Conceming discrimination. (7) To cooperate, within the limits of any appropriations made for its operation, with other agencies or organizations, both public and pdvate, whose purposes are consistent with those of this chapter, in the planning and conducting of programs designed to eliminate discrimination or cultural and intergroup tensions. Section 4. Section 27-29 of the City of Dubuque Code of Ordinances is amended to read as follows: The commission may issue subpoenas and order discovery in aid of investigations under this chapter. Such subpoenas and discovery may be 2 ordered to the same extent and subject to the same limitations as would apply for county attorney subpoenas. Section 6. Section 27-51(1) and (2) of the City of Dubuque Code of Ordinances are amended to read as follows: (1) Any person to intentionally aid, abet, compel or coerce another person to engage in any of the practices declared unfair or discriminatory by this chapter. (2) Any person to discriminate against another person in any of the dghts protected by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified or assisted in any proceeding under this chapter. Section 6. Section 27-52(1) of the City of Dubuque Code of Ordinances is amended to read as follows: (1) However, a retirement plan or benefit system shall not require the involuntary retirement of a person because of that person's age. Section 7. Section 27-51 of the City of Dubuque Code of Ordinances is amended to read as follows: Sec. 27-61. Prohibited Practices: It shall be an unfair or discriminatory practice for any person: (1) To refuse or deny to any person because of race, creed, color, sex, age, national odgin, or religion the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, age, national origin or religion in the furnishing of such accommodations, advantages/facilities, services or privileges. (2) To directly or indirectly advertise or in any other manner indicate or publicize that the patronage of persons of any particular race, creed, color, sex, age, national odgin or religion is unwelcome, objectionable, not acceptable, or not solicited. Section 8. Section 27-72 of the City of Dubuque Code of Ordinances is amended to read as follows: Sec. 27-72. Exemptions From Division: 3 This Division shall not apply to: (1) Any employer who regularly employs less than four (4) individuals. For purposes of this subsection, the owners, owner(s)' spouses and children shall not be counted as employees. (2) The employment of individuals for work within the home of the employer if the employer of members of the employer's family reside therein during such employment. (3) The employment of individuals to render personal service to the person of the employer or members of the employer's family. (4) Any bona fide religious institution with respect to any qualifications for employment based on religion when such qualifications are related to a bona fide religious purpose. A religious qualification for instructional personnel or administrative officer serving in a supervisory capacity of a bona fide religious educational facility or religious institution shall be presumed to be a bona fide occupational qualification. (5) Discrimination on the basis of age if the person subject to the discrimination is under the age of eighteen,(18) ears, unless that person is considered by law to be an adult. (6) A State or Federal program designed to benefit a specific age classification which serves a bona fide public purpose. Section 9. Section 27-81(a) of the City of Dubuque Code of Ordinances is amended to read as follows: (a) Genera/Ru/e: No person shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hidng, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Section 10. Section 27-82 of the City of Dubuque Code of Ordinances is amended to read as follows: Sec. 27-82. Defenses, Exemptions And Exclusions: (a) Defenses: (1) In General: It may be a defense to a charge of discrimination under this Division that an alleged application of qualification standards, tests, or selection cdteda that screen out or tend to screen out or otherwise deny a 4 job or benefit to an individual with a disability has been shown to be job- related and consistent with business necessity, and such performance cannot be accomplished by a reasonable accommodation, as required under this Chapter. (2) Qualification Standards: The term qualification standards may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (3) t~easonable Accommodation And Good Faith Effort: In cases where a discriminatory practice involves the prevision of a reasonable accommodation pursuant to this subsection, actual damages other than damages for back pay may not be awarded under this Chapter where the covered entity proves, by a preponderance of the evidence, good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business. (4) List Of Infectious And Communicable Diseases'. a. Applications: In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food that is included on the list developed by the Secretary of Health and Human Services under 42 USC 12113(d) and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling. b. Construction: Nothing in this Division shall be construed to preempt, modify, or amend any local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant dsk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the Secretary of Health and Human Services. (b) Exemptions: This Division shall not apply to: (1) Any employer who regularly employs less than four (4) individuals. For purposes of this subsection, the owner(s), the owner(s)' spouse(s) and children shall not be counted as employees. 5 (2) The employment of individuals for work within the home of the employer if the employer or members of the employer's family reside therein dudng such employment. (3) The employment of individuals to render personal service to the person of the employer or members of the employer's family. (4) An employer's qualifications for a job may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (c) Exclusions: (1) Homosexuality And Bisexuality:. For purposes of the definition of disability in Section 27-1, homosexuality and bisexuality are not impairments and as such are not disabilities under this Division. (2) Certain Conditions: Under this Division, the term disability shall not include: a. TransvestiSm, transsexualism, pedophilia, exhibitionism, voyeurism, · gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; b. Compulsive gambling, kleptomania, or pyromania; or c. Psychoactive substances use disorders resulting from current illegal use of drugs. Section '11. Section 27-84(e) of the City of Dubuque Code of Ordinances is amended to read as follows: (e) Governmental Regulations: Nothing in this Chapter shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Iowa Department of Transportation or any other state of federal agency of authority to: (1) Test employees of such entities in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and (2) Remove such persons who test positive for illegal use of drugs and on- duty impairment by alcohol pursuant to subsection (1) above from safety- sensitive duties in implementing subsection (c) above. Section 12. Section 27-85(a) and (c) of the City of Dubuque Code of Ordinances are amended to read as follows: Sec. 27-85. Public Accommodations Prohibited Practices: (a) It shall be an unfair or discriminatory practice for any person on the basis of disability to refuse or deny full and equal enjoyment of the goods, services, facilities, privileges, advantages, or other public accommodations. 6 (c) It shall be an unfair or discriminatory practice for any person to discriminate against an individual or class of individuals in any of the following: Section 13. Section 27-111(a) of the City of Dubuque Code of Ordinances are amended to read as follows: (a) Alt persons claiming to be aggrieved by a discriminatory or unfair practice within this City may sign and file with the Commission a verified, written complaint in triplicate which shall state the name and address of the person alleged to have committed the discriminatory or unfair practice of which complained, shall set forth the particulars thereof, and shall contain such other information as may be required by the Commission. The Commission, a commissioner, or the City Attorney may in tike manner sign and file such complaint. (b) Aperson who has tested positive for human immunodeficiency virus or who has a diagnosis of Acquired Immune Deficiency Syndrome or a person who is perceived to have human immunodeficlency virus or Acquired Immune Deficiency may file a disability charge utilizing "John Doe", "Jane Doe" or a coded number to protect the person's identity. The name of the charging party shall be disclosed to the respondent. It shall be a discriminatory practice for any person to disclose the name of the coded person or information that would lead to that person's identity. Section 14. Section 27-114 of the City of Dubuque Code of ordinances is amended to read as follows: (a) Notice To Respondent. After the filing of a verified complaint, a true copy shall be served within twenty (20) days by certified mail on the person against whom the complaint is filed. (b) Screening: The director shall review each complaint and is authorized to administratively close a case when the director finds any of the following i. Lack of jurisdicti0n; ii. Minimal impact on civil dghts in the community; or iii. further processing is not warranted. (c) Investigation By Staff; Probable Cause Determination By Administrative Law Judge: An authorized member of the Commission staff shall make a prompt investigation and shall issue a recommendation to an administrative law judge under the jurisdiction of the Commission, who shall then issue a determination of probable cause or no probable cause. 7 (1) For purposes of this Code, an administrative law judge issuing a determination of probable cause or no probable cause under this Section shall be exempt from section 17A. 17 of the State Code of Iowa. (2) If the administrative law judge concurs with the investigating official that probable cause exists regarding the allegations of the complaint, the staff of the Commission shall promptly endeavor to eliminate the discriminatory or unfair practice by conference, conciliation and persuasion. If the administrative law judge finds that no probable cause exists, the administrative law judge shall issue a final order dismissing the complaint and the Commission shall promptly mail a copy to the complainant and to the respondent by certified mail. A finding of probable cause shall not be introduced into evidence in an action brought under Section 27-117. (d) Conciliation Conference And Persuasion Procedures: The Commission staff must endeavor to eliminate the discriminatory or unfair practice by conciliation conference and persuasion for a period of thirty (30) days following the initial conciliation meeting between the respondent and the Commission staff after a finding of probable cause. After the expiration of thirty (30) days, the Director may order the conciliation conference and persuasion procedure provided in this Section to be bypassed when the Director determines the procedure is unworkable by reason of past patterns and practices of the respondent, or a statement by the respondent that the respondent is unwilling to continue with the conciliation. Upon the bypassing of conciliation, the Director shall state in writing the reasons for bypassing. Section 15. Section 27-116(a) of the City of Dubuque Code of Ordinances is amended to read as follows: (a) Upon Finding Of Discriminatory, Unfair Practice: If, upon taking into consideration all of the evidence at a headng, the Commission determines that the respondent has engaged in a discriminatory or unfair practice, the Commission shall state its findings of fact and conclusions of law and shall issue an order requiring the respondent to cease and desist from the discriminatory or unfair Practice and to take the necessary remedial action as in the judgment of the Commission will carry out the purposes of this Chapter. A copy of the order shall be delivered to the respondent, the complainant, and to any other public officers and persons as the Commission deems proper. 8 Remedial Actions: For the purposes of this subsection and pursuant to the provisions of this Chapter, "remedial action" includes, but is not limited to, the following: a. Hiring, reinstatement or upgrading of employees with or without pay. Intedm earned income and unemployment compensation shall operate to reduce the pay otherwise allowable. b. Admission or restoration of individuals to a labor organization, admission to or participation in a guidance program, apprenticeship training program, on-the-job training program or other occupational training or retraining program, with the utilization of objective criteria in the admission of individuals to such programs. c. Admission of individuals to a public accommodation or an education institution. d. Sale, exchange, lease, rental, assignment or sublease of real property to an individual. e. Extension to all individuals of the full and equal enjoyment of the advantages, fadlities, privileges and services of the respondent denied to the complainant because of the discriminatory or unfair practice. f. Reporting as to the manner of compliance. g. Posting notices in conspicuous places in the respondent's place of business in form prescribed by the Commission and inclusion of notices in advertiSing material. h. Payment to the complainant of damages for an injury caused by the discriminatory or unfair practice, which damages shall include, but are not limited to damages and reasonable attorney's fees. i. Reimbursement to the commission for contested case costs. (2) Requirements To Cease And Desist, Certifications To Licensing And Contracting Agencies: In addition to the remedies provided in the preceding provisions of this Section, the Commission may issue an order requiring the respondent to cease and desist from the discriminatory or unfair practice and may take such affirmative action as in the judgment of the Commission will carry out the purposes of this Chapter as follows: a. In the case of a respondent operating by virtue of a license issued by the State or a political subdivision or agency, if the Commission, upon notice to the respondent with an opportunity to be heard, determines that the 9 respondent has engaged in a discriminatory or unfair practice and that the practice was authorized, requested, commanded, performed or knowingly or recklessly tolerated by the Board of Directors of the respondent or by an officer or executive agent acting within the scope of such officer's or executive agent's employment, the Commission shall so certify to the licensing agency. Unless the Commission finding of a discriminatory or unfair practice is reversed in the course of judicial review, the finding of discrimination is binding on the licensing agency. b. In the case of a respondent who is found by the Commission to have engaged in a discriminatory or unfair practice in the course of performing under a contract or subcontract with the State or political subdivision or agency, if the practice was authorized, requested, commanded, performed, or knowingly or recklessly tolerated by the Board of Directors of the respondent or by an officer or. executive agent acting within the scope of such officer's or executive agent's employment, the Commission shall so certify to the contracting agency. Unless the Commission's finding of a discriminatory or unfair practice is.reversed in the course of judicial review, the finding of discrimination is binding on the contracting agency. Section 16. Section 27-117 of the City of Dubuque Code of Ordinances is amended to read as follows: Sec. 27-117. Sixty Day Release From Administrative Process, Altemative Judicial Proceedings Upon Complaints: · (a) Conditions For Release: A person claiming to be aggrieved by an unfair or discriminatory practice must initially seek an administrative relief by filing a complaint with the Commission in accordance with Section 27-111. A complainant, after the proper filing of a complaint with the Commission, may subsequently commence anaction for relief in the distdct court if all of the following conditions have been satisfied: (1) The complainant has timely filed the complaint with the Commission as provided in Section 27-113. (2) The complaint has been on file with the Commission at least sixty (60) days and the Commission has issued a release to the complainant pursuant to subsection (b) of this Section. (b) Requirements For Issuance Of Re/ease: Upon a request by the complainant, and after the expiration of sixty (60) days from the timely filing of a complaint with the Commission, the Commission shall issue to the complainant a release stating that the complainant has a dght to commence an action in the district court. A release under this subsection shall not be issued if a finding of no probabte cause has been made on the 10 complaint by the administrative law judge charged with the duty under Section 27-114, or a conciliation agreement has been executed, or the Commission has served notice of headng upon the respondent, or the complaint is closed as an administrative closure and two (2) years have elapsed since the issuance date of the closure. Notwithstanding Section 27-26, a party may obtain a copy of all documents contained in a case file where the Commission has issued a release to the complainant pursuant to this subsection. (c) Failure To Timely Seek Judicial Relief After Release; Release As Bar To Further Administrative Action On Complain~. An action authorized under this Section is barred unless commenced within ninety (90) days after issuance by the Commission of a release under subsection (b) of this Section. If a complainant obtains a release from the Commission under subsection (b) of this Section, the Commission shall be barred from further action on that complaint. (d) Venue For Court Action On Complain~ Venue for an action under this section shall be in Dubuque County. (e) Remedies In Judicial Proceedings; Attorney's Fees And Costs'. The district court may grant any relief under this Section which is authorized by Section 27-116 to be issued by the Commission. The district court may also award the respondent reasonable attomey's fees and court costs when the court finds that the complainant's action was frivolous. It is the legislative intent of this Section that every complaint be at least preliminarily screened during the first sixty (60) days. This subsection does not authorize administrative closures if an investigation is warranted. Section 17. Section 27-1'19 of the Dubuque Code of Ordinances is hereby repealed. Section '18. Section 27-12~1 of the Dubuque Code of Ordinances is amended to read as follows: Sec. 27-'121. Rule Of Construction: This Chapter shall be construed liberally to effectuate its purpose. Section '19. Section 27-'130 of the Dubuque Code of Ordinances is amended by substituting the following: 11 Person: Includes an individual, corporation, partnership, association, labor organization, legal representative, mutual company, joint-stock company, trust, unincorporated organizations, trustees, trustee in cases under title 1 1 (of the United States Code), receiver and fiduciary or any other legal entity. Section 20. This Ordinance shall take effect upon publication. Passed, approved and adopted this 1 st day of July ,2002. Attest: Terrance M. Duggan, Mayor Jeanne F. Schneider, CMC City Clerk F:~USERS\ 12 Chapter 27 Hunmn Relations ARTICLE I. IN GENERAL Sec. 27-1. Definitions: When used in this Chapter, the following terms shall have the meanings ascribed herein- unless the context otherwise requires: Court: The Iowa District Court !n ""'~ ;^' *~'~ ""~;";"' '~;~+'~"* "; *~'" e,.,~ cf ' .... ' ........... , ............................... In and for Dubuque County. Person: ORe-e~mere An individuals, partnerships, associations, corporations, legal representatives, trustees, receivers, any other legal entity and the State and all political subdivisions and agencies thereof. Unfair Practice Or Discdminatory Practice: These practices specified as unfair or discriminatory in Articles IV and VI of this Chapter. (1976 Code, § 21-1; Ord. 34-92, § 1, 5-18-1992; Ord. 39-96, § 1, 7-1-1996) ARTICLE II. HUMAN RIGHTS COMMISSION Sec. 27-23. Meetings: (b) The chairperson, the vice chairperson, or any three (3) members of the Commission may call a special meeting by giving at least er~ twenty four hours notice to every member of the Commission. The call for a special meeting shall include an agenda, and only matters included in that agenda may be d~=~cs$cd acted on at the meeting. Sec. 27-27. Powers And Duties: The Commission created by this Article shall have the following powers and duties: (4) To issue such publication and reports of investigations and research as in the judgment of the commission shall promote civil and respectful behavior which shall tend .,,+" eliminate discrimination (6) To make recornrnendations to the city council for such further legislation conceming discrimination ~--'"~ ..... (7) To cooperate, within the limits of any appropdations made for its operation, with other agencies or organizations, both public and private, whose purposes are consistent with those of this chapter, and in the planning and conducting of programs designed to eliminate mc-ial~-eli~ieus discrimination or cultural and intergroup tension. Sec. 27-29. Subpoenas: The commission may issue subpoenas and order discovery in aid of investigations under this chapter. Such subpoenas and discovery may be ordered .to the same extent apply ......... ~. ................ · ..... and subject to the same limitations as would ~,k .... k ........,~ ............. ,..,~,.~,,~ ...... ,~,~ ~...;,~ ,,~ .~ ,.~,~l .,,.,;,.,, ~. ,~.~, i,,,.,~ ,~,,~,-+ .... '~ for county attorney subpoenas. (Ord. 5-95, § 1, 1-3-1995) ARTICLE IV. UNFAIR AND DISCRIMINATORY PRACTICES DIVISION 1. IN GENERAL Sec. 27-51. Aiding Or Abetting: It shall be an unfair or discriminatory practice for: (1) Any person to intentionally aid, abet, compel or coerce another person to engage in any of the practices declared unfair or discriminatory by this 3,-t.!c!= chapter. (2) Any person to discriminate against another person in any of the dghts protected · .,,~n;..* ~*~ ...... ,~;~..kn~., cr '"~'~"~ ~"~"° by thi pt f~ .............. "~;"~"" s a~de cha er because such person has lawfully opposed any practice forbidden under this a~de chapter, obeys the provisions of this aKa, de chapter, or has filed a complaint, testified or assisted in any proceeding under this chapter. Sec. 27-52. Sex And Age Discrimination Provisions Not Applicable To Retirement Plans; Exception: The provisions of this chapter relating to discdmination because of sex or age shall not be construed to apply to any retirement plan or benefit system of any employer unless such plan or system is a mere subterfuge adopted for the purposes of evading the provisions of this chapter. (1) However, a retirement plan or benefit system shall not require the involuntary rebrement of a person ........... = .......... , ,, .., because of that person's age. Th.,!~ la ................ 3. DIVISION 2. ACCOMMODATIONS OR SERVICES Sec. 27-61. Prohibited Practices: It shall be an unfair or d~smm;nato~ pract ce for any c ...... , .............. ~ pemon: (1) To refuse or deny to any person because of race, creed, color, sex, age, naUonal odgin, or religion the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, age, national odgin or religion in the furnishing of such accommodations, advantages/facilities, services or privileges. (2) To directly or indirectly advertise or in any other manner indicate or publicize that the patronage of persons of any particular race, creed, color, sex, age, national odgin or religion is unwelcome, objectionable, not acceptable, or not solicited. DMSlON 3. EMPLOYMENT PRACTICES Sec. 27-72. Exemptions From Division: This Division shall not apply to: (i) Any employer who regularly employs less than four (4) individuals. For purposes of this subsection ~"~',, the owner(s), the owner(s)' spouse(s), and children shall not be counted as employees. (2) The employment of individuals for work within the home of the employer if the employer or members of the employer's family reside therein during such employment. (3) The employment of individuals to render personal service to the person of the employer or members of the employer's family. (4) Any bona fide religious institution with respect to any qualifications for employment based on religion when such qualifications are related to a bona fide religious purpose. A religious qualification for instructional personnel or an administrative officer serving in a supervisory capacity of a bona fide religious educational facility or religious institution shall be presumed to be a bona fide occupational qualification. (5) Discrimination on the basis of age if the person subject to the discrimination is under the age of eighteen (18) years, unless that person is considered by law to be an adult. (6) A State or Federal program designed to benefit a specific age classification which serves a bona fide public purpose. DIVISION 4. DISABILITY DISCRIMINATION Sec. 27-81. Employment Prohibited Practices: (a) General Rule: No c-evered-entity person shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Sec. 27-82. Defenses, Exemptions And Exclusions: (a) Defenses: (1) In General'. it may be a defense to a charge of discrimination under this Division that an alleged application of qualification standards, tests, or selection cdteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplish by a reasonable accommodation, as required under this Chapter. (2) Qualification Standards: The term qualification standards may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (3) Reasonable Accommodation and Good Faith Effort: In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to this subsection, actual damages other than damages for back pay may not be awarded under this Chapter where the covered entity proves, by a preponderance of the evidence, good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business. 4_) List Of Infectious And Communicable Diseases: al Applications: In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food that is included on the list developed by the Secretary of Health and Human Services under 42 USC 12113(d) and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling. b. Construction: Nothing in this Division shall be construed to preempt, modify, or amend any local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the Secretary of Health and Human Services. (b) Exemptions: This Division shall not apply to: (1) Any employer who regularly employs less than four (4) individuals. For purposes of this subsection,, ....................................... ~,~] .......... ~ i owner(s) and the owner(s¥ spouse(s) and children Shall not be counted as employees, (2) (4) The employment of individuals for work within the home of the employer if the employer or members of the employer's family reside therein during such employment. The employment of individuals to render personal service to the person of the employer or members of the employer's family. An employer's qualifications for a job may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (c) Exclusions: (t) Homosexuality and Bisexuality: For purposes of the definition of disability in Section 27-1, homosexuality and bisexuality are not impairments and as such are not disabilities under this Division. (2) Certain Conditions: Under this Division, the term disability shall not include: Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; Compulsive gambling, kleptomania, or pyromania; or Psychoactive substances use disorders resulting from current illegal use of drugs. Sec. 27-84. Illegal Use Of Drugs And Alcohol: (e) Trc. ..... ,..~. ......... ,*..*,.-,-_.=.---.~,.~....~..v.~ Governmental Regulations:l Nothing in this Chapter shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Iowa Department of Transportation or any other state or federal aqency of authority to: (1) Test employees of such entities in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and (2) Remove such persons who test positive for illegal use of drugs and on- duty impairment by alcohol pursuant to subsection (1) above from safety- sensitive duties in implementing subsection © above. Sec. 27-85. Public Accommodations Prohibited Practices: (a) It shall be an unfair or discriminatory practice for any person wf~>~s~easee (or Icccc$ tc), cr cpemtcc c pub!!c acccmmcdct!cn on the basis of disability to refuse or deny full and equal enjoyment of the goods, services, facilities, privileges, advantages, or other public accommodations. (c) It shall be an unfair or discriminatory practice for any person 1~ /"' ' ..... *"~ ....... * ...... ~"~ ....... '~*~"" to discriminate against an individual or class of individuals in any of the following: ARTICLE V. ENFORCEMENT OF CML RIGHTS Sec. 27-111. Filing Complaints: (a) All persons claiming to be aggrieved by a discriminatory or unfair practice within this City may, by th=m£clvcc, ,mc-k:, sign and file with the Commission a verified, wdtten complaint in triplicate which shall state the name and address of the person ~ ~mplc>,'m.~nt 3g~nc>', cr Icbcr crgan!z~t!cn alleged to have committed the discriminatory or unfair practice of which complained, shall set forth the particulars thereof, and shall contain such other information as may be required by the Commission. The Commission, a commissioner, or the City Attorney may in like manner mckc, sign, and file such complaint. (b) A person who has tested posiUve for Human Immunodeficiency Virus or who has a diagnosis of Acquired Immune Deficiency Syndrema or a person who is perceived to have Human Immunodeficiency virus or Acquired Immane Deficiency may file a disability charge utilizing "John Doe," "Jane Doe," or a coded number to protect the person's identity. The name of the charging party shall be disclosed to the respondent. It shall be a discriminatory practice for any person to disclose the name of the coded person or information that would lead to that person's identity. Sec. 27-114. Commission Staff Proceedings On Complaints: (a) Notice to Respondent: After the filing of a vedfied complaint, a true copy shall be served within twenty (20) days by certified mail on the person against whom the complaint is filed. (b) Screeninq: The director shall review each complaint and is authorized to administratively close a case when the director finds any of the followin,q: i. Lack of iudsdiction; ii. Minimal impact on civil d.qhts in the community; or iii. further, processin,q is not warranted. (b c) Investigation By Staff;, Probable Cause Determination By Administrative Law Judge: An authorized member of the Commission staff shall make a prompt investigation and shall issue a recommendation to an administrative law judge under the jurisdiction of the Commission, who shall then issue a determination of probable cause or no probable cause. (I) For purposes of this Code, an administrative law judge issues a determination of probable cause or no probable cause under this Section shall be exempt from section 17A.17 of the State Code of Iowa. (2) If the administrative law judge concurs with the investigating official that probable cause exists regarding the allegations of the complaint, the staff of the Commission shall promptly endeavor to eliminate the discriminatory or unfair practice by conference, conciliation and persuasion. If the administrative law judge finds that no probable cause exists, the administrative law judge shall issue a final order dismissing the complaint. The commission 3nd shall promptly mail a copy to the complainant and to the respondent by certified mail. A finding of probable cause shall not be introduced into evidence in an action brought under Section 27-117. (~ d_) Conc#iation Conference And Persuasion Procedures: The Commission staff must endeavor to eliminate the discriminatory or unfair practice by conciliation conference and persuasion for a period of thirty (30) days following the initial conciliation meeting between the respondent and the Commission staff alter a finding of probable cause. After the expiration of thirty (30) days, the Director may order the conciliation conference and persuasion procedure provided in this Section to be bypassed when the Director determines the procedure is unworkable by reason of past patterns and practices of the respondent, or a statement by the respondent that the respondent is unwilling to continue with the conciliation. Th..~ ...,..v....n~-~'"* ..... ,,,.~...* ,,.~...~' .... ~.~.,,~ pemu3~cn,....w....'* .... ~. Upon the bypassing of conciliation, the Director shall state in writing the reasons for bypassing. (1976 Code, § 21-80; Ord. No. 45-89, § 1, 9-5-1989) Sec. 27-116. Commission Orders: (a) Upon Hearing Finding of Discriminatory, Unfair Practice: If, upon taking into consideration all of the evidence at a headng, the Commission determines that the respondent has engaged in a discriminatory or unfair practice, the Commission shall state its findings of fact and conclusions of law and shall issue an order requiting the respondent to cease and desist from the discriminatory or unfair practice and to take the necessary remedial action as in the judgment of the Commission will carry out the purposes of this Chapter. A copy of the order shall be delivered to the respondent, the complainant, and to any other public officer and persons as the Commission deems proper. (1) Remedial Actions: For the purposes of this subsection and pursuant to the provisions of this Chapter, "remedial action" includes, but is not limited to, the following: Hiring, reinstatement or upgrading of employees with or without pay. Interim earned income and unemployment compensation shall operate to reduce the pay otherwise allowable. b= Admission or restoration of individuals to a labor organization, admission to or participation in a guidance program, apprenticeship training prOgram, on-the-job training program or other occupational training or retraining program, with utilization of objective criteria in the admission of individuals to such prograrr~. Admission of individuals to a public accommodation or an education institution. Sale, exchange, lease, rental, assignment or sublease of reel property'to an individual. Extension to all individuals of the full and equal enjoyment of the advantages, facilities, privileges and services of the respondent denied to the complainant because of the discriminatory or unfair practice. f. Reporting as to the manner of compliance. Posting notices in conspicuous places in the respondent's place of business in form prescribed by the Commission and inclusion of notices in advertising material. Payment to the complainant of damages for an injury caused by the discriminatory or unfair practice, which damages shall include, but are not limited to, 3c['J~ damages, ,"c,~'.'t. .... and reasonable attorney's fees. i. .Reimbursement to the commission for contested case costs. (2) Requirements To Cease And Desist, Certifications To Licensing And Contracting Agencies: In addition to the remedies provided in the preceding provisions of this Section, the Commission may issue an order requiring the respondent to cease and desist from the discriminatory or unfair practice and may take such affirmative action as in the judgment of the Commission will carry out the purposes of this Chapter as follows: In the case of a respondent operating by virtue of a license issued by the State or a political subdivision or agency, if the Commission, upon notice to the respondent with an opportunity to be heard, determines that the respondent has engaged in a discriminatory or unfair practice and that the practice was authorized, requested, commanded, performed or knowingly or recklessly tolerated by the Board of Directors of the respondent or by an officer or executive agent acting within the scope of such officer's or executive agent's employment, the Commission shall so certify to the licensing agency. Unless the Commission finding of a discriminatory or unfair practice is reversed in the course of judicial review, the finding of discdrnination is binding on the licensing agency. In the case of a respondent who is found by the Commission to have engaged in a discriminatory or unfair practice in the course of performing under a contract or subcontract with the State or political subdivision or agency, if the practice was authorized, requested, commanded, performed, or knowingly or recklessly tolerated by the Board of Directors of the respondent or by an officer or executive agent acting within the scope of such officer's or executive agent's employment, the Commission shall so certify to the contracting agency. Unless the Commission's finding of a discriminatory or unfair practice is reversed in the course of judiciat review, the finding of discrimination is binding on the contracting agency. Sec. 27-117. Sixty Day Release From Administrative Process, Alternative Judicial Proceedings Upon Complaints: (a) Conditions For Release: A person claiming to be aggrieved by an unfair or discriminatory practice must initially seek an administrative relief by filing a complaint with the Commission in accordance with Section 27-111. A complainant, after-the prcpcr filing ~ c ccmp!c!,".t ;;~.th the Cc,.,'nm,..~ss!cn, may subsequently comrnence an action for relief in the distdct court if all of the following Conditions have been satisfied: (1) The complainant has timely filed the complaint with the Commission as provided in Section 27-113. (2) The Complainant has been on file with the Commission at least sixty (60) days and the Commission has issued a release to the complainant pursuant to subsection (b) of this section. (b) Requirements for Issuance of Release: Upon a request by the complainant, and after the expiration of sixty (60) days from the timely filing of a complaint with the Commission, the Commission shall issue to the complainant a release stating that the complainant has a right to commence an action in the distdct court. A release under this subsection shall not be issued if a finding of no probable cause has been made on the complaint by the administrative law judge charged with the duty under Section 27- 114, or a conciliation agreement has been executed, or the Commission has served notice of hearing upon the respondent, or the complaint is closed as an administrative closure and two (2) years have elapsed since the issuance date of the closure. Notwithstanding Section 27-26, a party may obtain a copy of all documents contained in a case file where the Commission has issued a release to the complainant pursuant to this subsection.' (c) Failure to Timely Seek Judicial Relief after Release; Release as Bar to Further Administrative Action on Complaint: An action authorized under this Section is barred unless commenced within ninety (90) days after issuance by the Commission of a release under subsection (b) of this Section. If a complainant obtains a release from the Commission under subsection (b) of this Section, the Commission shall be barred from further action on that complaint. (d) Venue for Court Action on Complaint: Venue for an action under this Section shall be in Dubuque County. (e) Remedies In Ju(~cial Proceedings; Attorney's Fees And Costs: The district court may grant any relief i,-, c~ic~ under this Section which is authorized by Section 27-116 to be issued by the Commission. The distdct court may also award the respondent reasonable attorney's fees and court costs when the court finds that the complainant's action was frivolous. (f) It is the legislative intent of this Section that every complaint be at lease preliminarily screen during the first sixty (60) days. This subsection does not authorize administrative closures if an investigation is warranted. Sec. 27-119. Procedural Rules: '~4 ~ See Sec. 27-22. Sec. 27-121. Rule Of Construction: This Chapter shall be construed liberally to effectuate its purpose. (Ord. 20-93, § 7, 4- 19-1993) ARTICLE VI. FAIR HOUSING Sec. 27-130. Definitions: As usedin this Article: Person: Includes c~e or mcrc an individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual c-empanies company, joint-stock comp3,",!cc company, trusts, unincorporated organizations, trustees, trustees in cases under title 11 (of the United States Cede), receivers and fiduc!cdc~, fiduciary or any other le.qal entity. MEMORANDUM May 22, 2002 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Amendments to the Human Relations Ordinance Last fall there was some confusion amongst Human Rights Commissioners regarding some procedural issues connected with a public hearing. The confusion resulted from a lack of clarity in the administrative rules applicable to public hearings in housing cases. Additionally, a recent distdct court decision prompted reconsideration of procedures for screening complaints that do not warrant full investigation. The Human Rights Commission approved changes to make the ordinance more consistent with actual practices, clarify some provisions and remove others, and tighten some sections by removing extraneous language. Human Rights Director Kelly Larson is recommending adoption of the amendment to Chapter 27, "Human Relations," of the Code of Ordinances of the City of Dubuque. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Kelly Larson, Human Rights Director CITY OF DUBUQUE, IOWA MEMORANDUM May 22, 2002 TO: Michael Van Milligen, City Manager FROM: Kelly Larson, Human Rights Director SUBJECT: Amendments to the Human Relations Ordinance INTRODUCTION: The purpose of this memorandum is to present for City Council consideration amendments to Chapter 27 of the Dubuque Code of Ordinances, entitled "Human Relations." BACKGROUND: As you may recall, there was some confusion amongst Human Rights Commissioners last fall regarding some procedural issues connected with a public hearing. The confusion resulted from a lack of clarity in the administrative rules applicable to public hearings in housing cases. Additionally, a recent district court decision prompted us to reconsider our pmceduras for screening complaints that do not warrant full investigation. As a result of the foregoing, Bill Blum and I undertook a detailed review of both the administrative rules and the Human Relations Ordinance. In December 2001, we provided the proposed changes to the Human Rights Commission for their consideration. At the Commission's regularly scheduled meeting on Apdl 8, 2002, after discussion, the Commission adopted the changes to the administrative rules and approved the proposed ordinance changes with a recommendation that they be forwarded to the City Council for consideration. The attached changes make the ordinance more consistent with actual practices, cladfy some provisions and remove others, and tighten some sections by removing extraneous language. RECOMMENDATION: The Human Rights Commission recommends that the attached amendments be adopted. BUDGET IMPACT: There is no budget impact anticipated based on the adoption of the attached amendments. ACTION STEP: The requested action is for the City Council to adopt the attached ordinance amending Chapter 27, "Human Relations," of the Code of Ordinances of the City of Dubuque at its June 3, 2002 City Council meeting. Attachments