Chapter 402 - EQUAL EMPLOYMENT OPPORTUNITY

Sec. 400.401. - Length of program. Chapter 406 - PUBLIC ACCOMMODATIONS Chapter 402 - EQUAL EMPLOYMENT OPPORTUNITY[1]

Footnotes: --- (1) ---

State Law reference— Basic rights, Fla. Const. Art. I, § 2; due process, Fla. Const. Art. I, § 9; unlawful employment practices, F.S. § 760.10.

State rule references—Organization and general information [Florida Commission on Human Rights], Laws of Fla. Ch. 22T-6; general procedures [Florida Commission on Human Rights], Laws of Fla. Ch. 22T-8; proceedings upon complaints of unlawful employment practice, Laws of Fla. Ch. 22T-9.

PART 1. - GENERAL PROVISIONS

Sec. 402.101. - Short title.

This Chapter shall be known and may be cited as the "Jacksonville Equal Employment Opportunity Ordinance."

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1)

Note— Former § 152.101.

Sec. 402.102. - Legislative findings.

The City finds and declares that:

(a)

The right of equal opportunity of access to employment and the right of fair treatment by employers without discrimination on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, marital status, age and disability are civil rights guaranteed by the United States Constitution and implemented and enforced by federal law and by the laws of the State.

(b)

It is the duty of the City, as the local government most concerned with the welfare and morale of the citizens of Jacksonville, and in accordance with the federal constitution and statutory mandate and the requirements of State law, to undertake to protect, defend and vindicate these rights on behalf of the citizens of Jacksonville.

(c)

The enactment of this Chapter will promote the public welfare and morale by protecting the citizens of Jacksonville in their interest in personal dignity and esteem, making available to the City their full productive capacity, securing the City against domestic strife and unrest and promoting the interests, rights and privileges of individuals within the City.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2004-699-E, § 6; Ord. 2017-15-E, § 2; Ord. 2020-244-E, § 3)

Note— Former § 152.102.

Sec. 402.103. - Declaration of policy.

Based on the findings made in Section 402.102, the City hereby declares it to be the policy of the City that, for the protection and advancement of the public health, safety and general welfare, for the maintenance of business and good government and for the promotion of the City's trade, commerce and manufacturing, discrimination in access to and unequal enjoyment of employment opportunities should be ended and discrimination in employment practices should be proscribed.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 2004-699-E, § 7)

Note— Former § 152.103.

Sec. 402.104. - Objectives.

The objectives of this Chapter and of its several provisions are to provide a positive means for implementation of the policy declared in Section 402.103 and to discourage and eliminate discriminatory practices in a fashion similar to that employed by the Equal Employment Opportunity Commission under federal law.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1)

Note— Former § 152.104.

Sec. 402.105. - Statement of intent.

This Chapter is enacted by the City in aid of the following federal laws and regulations and Presidential executive orders:

(a)

Amendments V, XII and XIV to the Constitution of the United States.

(b)

Equal Pay Act of 1963 [29 U.S.C. 206(d)].

(c)

Age Discrimination in Employment Act of 1967 [29 U.S.C. 621—634].

(d)

Rehabilitation Act of 1973 [29 U.S.C. 791].

(e)

Title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d—2000d-4].

(f)

Title VII of the Civil Rights Acts of 1964, as amended by the Equal Employment Opportunity Act of 1972 [42 U.S.C. 2000e—2000e-17].

(g)

Executive Order 11246 [30 Fed. Reg. 12319, September 24, 1965], as amended by Executive Order 11375 [32 Fed. Reg. 14303, October 13, 1967].

(h)

Revised Order No. 4 [41 C.F.R. 60-2].

(i)

Omnibus Crime Control and Safe Streets Acts of 1968 [42 U.S.C. 3701—3795].

(j)

State and Local Fiscal Assistance Act of 1972, as amended [31 U.S.C. 1221—1264].

(k)

Title VIII of the Civil Rights Act of 1964 [42 U.S.C. 2000f et seq.].

It is the intent of the City that this Chapter shall be considered a local law implementing a federal constitutional and statutory mandate by requiring equal employment opportunity, establishing an enforcement authority and mechanism and removing any local impairment or frustration of or impediment to the execution of this mandate in the manner prescribed in this Chapter.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 2004-699-E, § 8)

Note— Former § 152.105.

Sec. 402.106. - Source of authority.

This Chapter is enacted by the City pursuant to and under its authority contained in Sections 3.01, 3.02 and 5.06 of the Charter and, in accordance with the statement of intent contained in Section 402.105, under Clause 2 of Article 6 of the United States Constitution.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 2004-699-E, § 9)

Note— Former § 152.106.

Sec. 402.107. - Definitions.

In this Chapter, unless the context otherwise requires:

(a)

Applicant means an individual who has applied for employment in a job position but who has not yet been hired in that position.

(b)

Bona fide occupational qualification means a physical, educational, intellectual, economic or other standard, requirement or quality that:

(1)

Is required of persons who apply for or occupy the job position for which it is prescribed; and

(2)

Is related to and necessary for job performance; and

(3)

Cannot be possessed, performed or met by a person excluded from the job position by reason of the qualification.

(c)

Bona fide seniority system means an employment practice whereby employees are promoted, laid off, rehired, assigned, transferred, offered additional or improved employment opportunities, given increased compensation or other benefits or otherwise dealt with on the basis, wholly or partially, of length of service, which, on its face, does not discriminate and is not intended or designed to disguise discrimination.

(d)

Commission means the Jacksonville Human Rights Commission established by Chapter 60.

(e)

Disability means, with respect to an individual:

(1)

A physical or mental impairment which "substantially limits" one or more of the individual's major life activities;

(2)

A record of such an impairment;

(3)

Being regarded as having such an impairment.

For the purpose of this Chapter, a disabled individual is substantially limited if s/he is likely to experience difficulty in securing, retaining or advancing in employment because of the disability.

(f)

Direct threat.

(1)

The term direct threat means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.

(g)

Discriminate, discrimination and discriminatory include:

(1)

A difference in treatment because of race, religion, national origin, sex, sexual orientation, gender identity, or marital status where the difference is not justified by business necessity or is not a bona fide occupational qualification.

(2)

Any of the unlawful employment practices hereinafter enumerated.

(3)

An unlawful separation, segregation or distinction directly or indirectly against a person because of race, color, religion, national origin, sex, sexual orientation, gender identity, or disability.

(4)

Participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this Subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of this covered entity, or an organization providing training and apprenticeship programs).

(5)

Excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.

(h)

Employee means an individual employed by an employer but does not include a person elected to public office or a person chosen by the officer to be on the officer's personal staff or an appointee on the policy-making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office; provided, that the exclusion set forth in this sentence shall not apply to employees subject to the civil service laws of the City.

(i)

Employer means a person who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and includes:

(1)

An agent of a person; and

(2)

The Consolidated Government of the City, considered as a single entity and not by its constituent agencies;

But does not include:

(1)

The United States, a corporation wholly owned by the government of the United States or an agency of the United States;

(2)

The State of Florida or any of its agencies;

(3)

The governments of the Second, Third, Fourth or Fifth Urban Services Districts; or

(4)

A bona fide membership club (other than a labor organization) which is exempt from taxation under Section 501(c) of the Internal Revenue Code of 1954 [26 U.S.C. 501(c)].

(j)

Employment agency means a person regularly undertaking, either with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

(k)

Employment decision includes hiring, layoff, termination, discharge, rehiring, upgrading, promotion, demotion, transfer and similar actions.

(l)

Employment practice means a method of operation used by an employer, including recruitment, recruitment advertising, use of selection devices, hiring, layoff, termination, rehiring, upgrading, demotion, transfer, rates of pay or other forms of compensation and use of facilities.

(m)

Executive Director means the Executive Director of the Jacksonville Human Rights Commission as provided in Chapter 60.

(n)

Gender identity shall mean the gender-related identity, appearance, or expression of a person. Gender identity may be demonstrated by a person's consistent and uniform assertion of a particular gender identity, appearance or expression, or by any other evidence that a person's gender identity is sincerely held, provided, however, that gender identity shall not be asserted for any improper, illegal or criminal purpose.

(o)

Labor organization includes:

(1)

An organization of any kind, an agency or employee representation committee, group, association or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment.

(2)

A conference, general committee, joint or system board or joint council which is subordinate to a State, national or international labor organization.

(3)

An agent of a labor organization.

(p)

Reasonable accommodation may include:

(1)

Making existing facilities used by the employees readily accessible to and usable by individuals with disabilities; and

(2)

Job structuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modifications of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

(3)

Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(4)

Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed that enable a qualified individual with a disability to perform functions of that position; or

(5)

Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities,

(q)

Qualified individual with a disability:

(1)

The term qualified individual with a disability means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position; that such individual holds or desires. For the purposes of this Chapter, consideration shall be given to the employer's judgment as to what functions of a job are essential and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

(r)

Religious Organization shall mean and include churches, synagogues, mosques, and schools of religious instruction and non-profit institutions or organizations affiliated therewith, as well as any "religious corporation, association or society." The phrase "religious corporation, association or society" shall be interpreted consistent with Section 2000e-(1)(a), United States Code.

(s)

Sexual orientation shall mean an individual's actual or perceived orientation as heterosexual, homosexual, or bisexual.

(t)

Substantially limits: The term substantially limits means:

(1)

Unable to perform a major life activity that the average person in the general population can perform; or

(2)

Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

(u)

Training program means any plan containing terms and conditions for qualification, recruitment, selection, employment, training of employees to:

(1)

Enter a specific trade or occupation after completion of a specified training program; or

(2)

Offer a person already either partially or wholly trained in a specified trade or occupation an opportunity to advance him/herself after completion of a specified training program.

(v)

Undue hardship:

(1)

In general. The term undue hardship means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (2).

(2)

Factors to be considered. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include:

(i)

The nature and cost of the accommodation needed under this Chapter;

(ii)

The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodations; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility.

(iii)

The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv)

The type of operation or operations of the covered entity, including the composition, structure and functions of the work force of such entity; the geographic separateness administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, §§ 2, 3; Ord. 2020-244-E, § 3)

Note— Former § 152.107.

Sec. 402.108. - Construction.

This Chapter shall be liberally construed to effect the policy stated in Section 402.103. In addition, this Chapter shall be construed so as to be consistent with and supplement the statutes and regulations of the United States concerning equal employment opportunity.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1)

Note— Former § 152.108.

Sec. 402.109. - Commission to administer Chapter.

The Commission shall be responsible for the administration of this Chapter and for seeing that its provisions are observed and enforced. The Commission is empowered to make all necessary rules to accomplish this responsibility, and, by rule, to delegate administrative and investigative authority to the Executive Director.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1)

Note— Former § 152.110.

PART 2. - DISCRIMINATION IN EMPLOYMENT

Sec. 402.201. - Employees.

Except as provided in Section 402.208, it is an unlawful employment practice for an employer:

(a)

To fail or refuse to hire, to discharge or otherwise to discriminate against an individual with respect to compensation or the terms, conditions or privileges of employment because of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability.

(b)

To limit, segregate or classify employees or applicants in a way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect the status of an employee or applicant because of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability.

(c)

To refuse to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(d)

To deny employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

(e)

To use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and

(f)

To fail to select and administer tests concerning employment in the most effective manner to ensure that when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, § 2; Ord. 2020-244-E, § 3)

Note— Former § 152.201.

Sec. 402.202. - Employment agencies.

Except as provided in Section 402.208, it is an unlawful employment practice for an employment agency:

(a)

To fail or refuse to refer for employment or otherwise to discriminate against an individual because of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability.

(b)

To classify or refer for employment an individual on the basis of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, § 2; Ord. 2020-244-E, § 3)

Note— Former § 152.202.

Sec. 402.203. - Labor organizations.

Except as provided in Section 402.208, it is an unlawful employment practice for a labor organization:

(a)

To exclude or to expel from membership or otherwise to discriminate against a member or applicant for membership because of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability.

(b)

To limit, segregate or classify its membership or applicants for membership or to classify or fail or refuse to refer for employment an individual otherwise qualified for membership in a way which would:

(1)

Deprive an individual of employment opportunities; or

(2)

Limit the employment opportunities or otherwise adversely affect the status of an employee or of an applicant for employment;

Because of race, color, religion, national origin, sex, sexual orientation, gender identity, marital status, age or disability.

(c)

To cause or attempt to cause an employer to discriminate against an individual in violation of this Chapter.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, § 2; Ord. 2020-244-E, § 3)

Note— Former § 152.203.

Sec. 402.204. - Training programs.

Except as provided in Section 402.208, it is an unlawful employment practice for an employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training, programs to discriminate against an individual because of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability in admission to or employment in a program established to provide apprenticeship or other training.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, § 2; Ord. 2020-244-E, § 3)

Note— Former § 152.204.

Sec. 402.205. - Medical examinations and inquiries.

(a)

In general. The prohibition against unlawful employment practices as referred to in Section 402.201 of this Chapter shall include medical examinations and inquiries.

(b)

Pre-employment.

(1)

Prohibited examination or inquiry. Except as provided in paragraph (3), an employer shall not conduct a medical examination or make inquires of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

(2)

Acceptable inquiry. An employer may make pre-employment inquiries into the ability of an applicant to perform job-related functions.

(c)

Employment entrance examination. An employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if:

(1)

All entering employees are subjected to such an examination regardless of disability;

(2)

The information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that:

(i)

Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.

(ii)

First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(iii)

Government officials investigating compliance with this Chapter shall be provided with relevant information on request; and

(3)

The results of such examination are used only in accordance with this Subchapter.

(d)

Examination and inquiry.

(1)

Prohibited examinations and inquiry. An employer shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination is shown to be job-related and consistent with business necessity.

(2)

Acceptable examinations and inquiries. A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

(3)

Requirement. Information obtained under subparagraph (2) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (2) and (3) of paragraph (c).

(Ord. 1999-1117-E, § 1)

Sec. 402.206. - Other discriminatory practices.

It is an unlawful employment practice for an employer, labor organization, employment agency or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training, programs to print or publish or cause to be printed or published a notice or advertisement:

(a)

Relating to employment by the employer or membership in or a classification or referral for employment by the labor organization; or

(b)

Relating to a classification or referral for employment by the employment agency; or

(c)

Relating to admission to or employment in a program established to provide apprenticeship or other training by the joint labor-management committee;

Indicating in any of these areas a preference, limitation, specification or discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability; provided, that a notice or advertisement may indicate a preference, limitation, specification or discrimination based on religion, sex, sexual orientation, gender identity, marital status or national origin when the factor or qualification is a bona fide occupational qualification for employment.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, § 2; Ord. 2020-244-E, § 3)

Note— Former § 152.205.

Sec. 402.207. - Discrimination because of participation under this Chapter.

It is an unlawful employment practice for an employer to discriminate against an employee or applicant, for an employment agency or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training, programs to discriminate against an individual or for a labor organization to discriminate against a member or applicant for membership because the individual has made a charge or testified, assisted or participated in any manner in an investigation, proceeding or hearing under this Chapter.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1)

Note— Former § 152.206.

Sec. 402.208. - Defenses.

(a)

In general. It may be a defense to a charge of discrimination under this Chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job 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 reasonable accommodation, as required under this Subchapter.

(b)

Qualification standards. The term "qualification standards" may include a requirement that an individual shall not pose a direct threat in the health or safety of other individuals in the workplace.

(Ord. 1999-1117-E, § 1)

Sec. 402.209. - Limitations and exemptions.

(a)

This Part 2 does not apply to: A religious organization, as defined by this Chapter, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by the religious organization of its religious activities.

(b)

Nothing herein shall prohibit an employer from providing single-sex restrooms, locker rooms, shower facilities, bath houses, health spas, dormitories, lodging facilities and similar facilities that are by their nature distinctly private for its employees.

(c)

Nothing herein shall prohibit an employer from establishing and enforcing a dress code for its employees, provided that such dress code shall not be based upon sex stereotypes.

(d)

With regard to discrimination based on sexual orientation or gender identity, this Part 2 shall not apply with regard to any action of, or decision made by, a religious organization as defined in this Chapter.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2004-699-E, § 10; Ord. 2020-244-E, § 3)

Note— Former § 152.207.

Sec. 402.210. - Exceptions.

It is not an unlawful employment practice:

(a)

For an employer to hire and employ an employee, for an employment agency to classify or refer for employment an individual, for a labor organization to classify its membership or to classify or to refer for employment an individual or for an employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ an individual in the program on the basis of religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability where religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business enterprise.

(b)

For a school, college, university or other educational institution to hire and employ an employee of a particular religion if the school, college, university or other educational institution is, in whole or substantial part, owned, supported, controlled or managed by a particular religion or by a particular religious corporation, association or society or if the curriculum of the school, college, university or other educational institution is directed toward the propagation of a particular religion.

(c)

For an employer to fail or refuse to hire and employ an individual for a position, for an employer to discharge an individual from a position, for an employment agency to fail or refuse to refer an individual for employment in a position or for a labor organization to fail or refuse to refer an individual for employment in a position if:

(1)

The occupancy of the position or access to the premises in or upon which a part of the duties of the position is performed or is to be performed is subject to a requirement imposed in the interest of the national security of the United States under a security program in effect pursuant to or administered under a statute of the United States or an executive order of the President; and

(2)

The individual has not fulfilled or has ceased to fulfill that requirement.

(d)

For an employer to terminate, discharge or lay off an employee because the employee was convicted under Section 402.402 of filing a malicious complaint against the employer.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, § 2; Ord. 2020-244-E, § 3)

Note— Former § 152.208.

Sec. 402.211. - Seniority or merit systems.

Notwithstanding any other provisions of this Part, it is not an unlawful employment practice for an employer:

(a)

To apply different standards of compensation or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system or a system which measures earning by quantity or quality or production or to employees who work in different locations, if the differences are not the result of an intention to discriminate because of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability.

(b)

To give and act upon the results of a professionally developed ability test if the test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability.

(c)

To differentiate upon the basis of sex in determining the amount of wages or compensation paid or to be paid to employees of the employer if the differentiation is authorized by the provisions of Section 6(d) of the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 206(d)].

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, § 2; Ord. 2020-244-E, § 3)

Note— Former § 152.209.

Sec. 402.212. - Reserved.

Editor's note— The provisions of former § 402.210, relative to members of Communist Party or Communist-action or -front organizations, were deleted as part of the Super Supplement to the Code. Former § 402.210 derived from Ord. 78-633-626, § 1; Ord. 83-591-400, § 1.

Note— Former § 152.210.

Sec. 402.213. - General unlawful employment practices.

Notwithstanding that no immediate business or professional relationship exists between the persons involved, it is an unlawful employment practice for a person:

(a)

To retaliate or discriminate in any manner against a person because the latter has opposed an unlawful employment practice under this Part or because the person has made a charge or testified, assisted or participated in a manner in an investigation, proceeding or hearing under this Chapter.

(b)

To aid, abet, incite, compel or coerce a person to engage in an unlawful employment practice under this Part or to prevent a person from complying with the provisions of this Chapter or an order of the Commission issued hereunder.

(c)

By canvassing, to commit or engage in an unlawful employment practice under this Part.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1)

Note— Former § 152.211.

PART 3. - PROCEDURE

Sec. 402.301. - Jurisdiction of Commission.

The Commission shall have jurisdiction to hear and determine all complaints concerning violations of this Chapter and of its rules promulgated to implement this Chapter. This jurisdiction is original and exclusive of any other administrative or executive agency of the City, except as herein expressly provided.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1)

Note— Former § 152.301.

Sec. 402.302. - Complaints.

(a)

All proceedings under this Chapter shall be commenced by the filing of a complaint alleging the engaging in an unlawful employment practice or the violation of a rule by which the person complained against is required to do or refrain from doing an act in furtherance of the general objectives stated in Section 402.104. A complaint may be filed by a person who is or believes himself to be aggrieved or injured on account of the unlawful employment practice or of the violation of a rule which is alleged in the complaint, or by a person on behalf of the aggrieved or injured person.

(b)

The complaint shall be in a form prescribed by the rules of the Commission and shall state at least the name and address of the complainant and the name and address of the person against whom the complaint is made. It shall also state the unlawful employment practice or rule violation which is alleged to have been engaged in or committed and a brief statement of the facts surrounding and upon which the alleged unlawful employment practice or rule violation is based. The complaint shall be sworn to or affirmed. Charges shall not be made public by the Commission.

(c)

A complaint shall be filed within 180 days after the date on which the alleged unlawful employment practice or rule violation occurred. A complaint filed thereafter shall be referred to the appropriate State or federal agency, when applicable.

(d)

A copy of the complaint shall be delivered to the person complained against, and each of them if more than one. Delivery shall be made within ten working days after the complaint is filed.

(e)

Once filed, a complaint shall be disposed of in a manner prescribed by the rules of the Commission. In those instances where the parties have reached a negotiated settlement agreement that disposes of the complaint, the Commission shall dismiss the complaint and take no further action.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2004-699-E, § 11)

Note— Former § 152.302.

Sec. 402.303. - Investigations.

The Commission shall make a prompt investigation of each complaint. The procedure and rules of the Commission shall be designed to secure a speedy resolution on every complaint filed with the Commission, to the end that the unlawful employment practices prohibited by this Chapter shall be dealt with speedily and completely.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2004-699-E, § 12)

Note— Former § 152.304.

Sec. 402.304. - Mediation.

Upon the filing of a complaint as set forth in Section 402.302 and prior to the initiation of a formal investigation, the Commission may offer to the parties to a complaint the opportunity to participate in a mediation conference, in accordance with the rules of the Commission. If mediation is successful, the terms and conditions of the settlement shall be embodied in a negotiated settlement agreement. The Commission, if it approves the agreements, shall dismiss the complaint and take no further action. If mediation is unsuccessful, the Commission may proceed with the investigation of the complaint as if mediation had not been attempted.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1)

Note— Former § 152.307.

Sec. 402.305. - Pleading and papers.

The person complained against may file an answer to a complaint within the time allowed by the rules of the Commission and an interested party or persons may, with the permission of the Commission, file a statement of facts. No other pleadings shall be filed or allowed unless required or ordered by the Commission and the rules of the Commission may provide for the participation of persons as amicus commissionem. The rules of the Commission shall provide for the filing of appropriate and necessary papers.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1)

Note— Former § 152.303.

Sec. 402.306. - Disposition of complaint.

(a)

If, at the conclusion of the investigation, the Commission determines that the person complained of has not engaged in an unlawful employment practice or committed a violation of a rule, the Commission shall state its findings and enter its order dismissing the complaint.

(b)

If, at the conclusion of the investigation, the Commission determines that the person complained of has engaged in an unlawful employment practice or committed a violation of a rule, the Commission shall state its findings. The Commission shall make its determination on reasonable cause as promptly as possible.

(c)

At all times during the investigation of and hearing on the complaint, the Commission shall endeavor to eliminate the alleged unlawful employment practice or violation by conference, persuasion, mediation and conciliation. In all hearings, proceedings and investigations, nothing said or done during and as a part thereof shall be made public except to the extent authorized by federal law.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1)

Note— Former § 152.305.

Sec. 402.307. - Conciliation conference and agreements.

Upon entering a finding in accordance with Section 402.306(b), the Commission will invite the person complained against the opportunity to enter into a conciliation conference, in accordance with the rules of the Commission.

(a)

If conciliation is successful, the terms and conditions of the conciliation shall be embodied in a conciliation agreement, signed by the parties. A conciliation agreement shall not be constituted as an admission by any party that the law has been violated.

(b)

A conciliation agreement shall not be considered as evidence or admission of a prior unlawful employment practice or violation; however, unless a conciliation agreement has been rescinded by agreement of the parties or voided by a court of competent jurisdiction, subsequent failure to comply substantially with the terms of a conciliation agreement shall be prima facie evidence of an unlawful employment practice or violation.

(c)

Upon failure or refusal of a party to observe the terms of a conciliation agreement, the Commission may resort, upon request and after proper notice, to the enforcement procedures prescribed in Section 402.310.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2004-699-E, § 13)

Note— Former § 152.306.

Sec. 402.308. - Hearings.

In the event conciliation fails, a full hearing before a hearing officer shall be held at such time and place, in accordance with the rules of the Commission. The hearing procedures shall be designed to secure a speedy resolution of the complaint. If the hearing officer concludes that the person complained of has engaged in an unlawful employment practice or committed a violation of a rule, the Commission shall enter an order in conformity with those findings. The order shall require the corrective, remedial and affirmative action as will carry out the objectives of this Chapter and may contain such provisions for the monitoring of compliance with the order as the Commission considers necessary and adequate. The hearing process will cease if the complainant submits a request, in writing, to the Commission to seek relief in a court of competent jurisdiction.

(Ord. 1999-1117-E, § 1)

Sec. 402.309. - Failure or refusal of parties to participate; malicious complaints.

(a)

If the person who filed a complaint or on whose behalf a complaint was filed fails or refuses to participate in an investigation, hearing or other proceeding under this Chapter or if the person fails or refuses to make a good faith effort to resolve the differences between the parties, the Commission may dismiss the complaint. If the person against whom the complaint was filed fails or refuses to participate in an investigation, hearing or other proceeding under this Chapter or if the person fails or refuses to make a good faith effort to resolve the differences between the parties, the Commission may terminate efforts to conciliate the dispute and proceed to a hearing on the complaint.

(b)

If, after investigation of a complaint, the complainant has been found to have deliberately filed a false complaint based solely on malicious and disruptive intent, the complaint shall be dismissed with prejudice. In addition, the person may be subject to the penalties contained in Section 402.402.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1)

Note— Former § 152.308.

Sec. 402.310. - Enforcement procedures.

If a party to a conciliation agreement accepted by the Commission or a person subject to an order of the Commission entered pursuant to Section 402.305(b) fails or refuses to observe the terms of the conciliation agreement or order as the case may be, the Commission shall request the General Counsel to institute an appropriate action to enforce said agreement in the proper court which may include the City's undertaking efforts:

(a)

To obtain a declaratory judgment that an act or practice violates or is contrary to the provisions of this Chapter or the rules or an order of the Commission.

(b)

To enjoin a party who has violated or is violating the terms of the conciliation agreement or order.

(c)

To require the party to take corrective actions, cease the violation of the terms of the conciliation agreement or order or take affirmative action to assure that no future violations will occur, or all of these things.

(d)

To obtain such other appropriate relief as may be available under the laws of the State or the United States for unlawful employment practices.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2004-699-E, § 14)

Note— Former § 152.309.

PART 4. - PENALTIES

Sec. 402.401. - Violations; penalty.

A person who, knowingly and willfully:

(a)

Commits or procures or acquiesces in the commission of a violation of a rule of the Commission by which a person is required to do or refrain from doing an act in furtherance of the general objectives stated in Section 402.104; or

(b)

Conducts, authorizes, directs or conspires to conduct, authorize or direct, or procures or acquiesces in the conducting, authorizing, directing or conspiracy to conduct, authorize or direct a reprisal against a person because that person filed a complaint or testified, assisted or participated in a manner in an investigation, proceeding or hearing; or

(c)

Fails or refuses, or procures or acquiesces in a failure or refusal to observe the terms of a conciliation agreement or order of the Commission entered pursuant to Section 402.305(b); or

(d)

Obstructs or prevents, or procures or acquiesces in the obstruction or prevention of the enforcement of or compliance with a rule or order of the Commission or a conciliation agreement; or

(e)

Interferes with, or procures or acquiesces in an interference with, the performance of a duty or the exercise of a power by the Commission or one of its members or representatives; or

(f)

Being, at the time a person who filed a complaint, a member or employee of the Commission having access to or being involved in the proceedings of the Commission with respect to a complaint, makes the charge in the complaint or any matter in the proceedings a public matter;

Shall, upon conviction thereof, be punished by fine not to exceed $500.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 1999-1117-E, § 1; Ord. 2017-15-E, § 7; Ord. 2020-244-E, § 6)

Note— Former § 152.401.

Sec. 402.402. - Malicious complaints.

A person who files or procures the filing of a complaint with the Commission alleging one or more unlawful employment practices when, at the time of filing the complaint, the person knew or reasonably should have known that the complaint was false and the person filed or procured the filing of the complaint maliciously or with intent to disrupt the business operations of the person against whom the complaint was filed shall, upon conviction thereof, be punished by a fine not to exceed $500.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1; Ord. 2017-15-E, § 7; Ord. 2020-244-E, § 6)

Note— Former § 152.402.

Sec. 402.403. - Reserved.

Editor's note— The provisions of former § 402.403, relative to no relief from liability, duty, etc., were deleted as part of the Super Supplement to the Code. Former § 402.403 derived from Ord. 78-633-626, § 1; Ord. 83-591-400, § 1.

Note— Former § 152.403.

Sec. 402.404. - "Prima facie" evidence.

In a proceeding under this Chapter, a written, printed or visual communication, advertisement or other form of publication, written inquiry, record or other document purporting to have been made by a person is prima facie evidence that it was authorized by him.

(Ord. 78-633-626, § 1; Ord. 83-591-400, § 1)

Note— Former § 152.404.

Sec. 402.405. - Written interpretations or opinions.

In an action or proceeding based on an alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of the commission by the person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with and in reliance on a written interpretation or opinion of the Commission. The defense, if established, shall be a bar to the action or proceeding, notwithstanding that, after the act or omission occurred, the interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.

(Ord. 79-424-310, § 1; Ord. 83-591-400, § 1)

Note— Former § 152.405.

Sec. 400.401. - Length of program. Chapter 406 - PUBLIC ACCOMMODATIONS