Law professors say local civil rights ordinances better than federal regulations

After the Goshen City Council on Aug. 4 tabled an amendment to add protections to the city’s civil rights ordinance based on sexual orientation and gender identity, council members and Mayor Allan Kauffman talked about other means of adding such protections. The mayor later added those protections to the city’s hiring policy through an executive order.

At the close of the Aug. 4 meeting, there appeared to be a strong consensus among council and community members that more research and discussion on the topic needs to happen. A study committee or perhaps community groups willing to work together to find common ground, were suggested as avenues.

Kauffman also mentioned a recent ruling by the U.S. Equal Employment Opportunity Commission he felt might enhance local protections for the LGBT community.

According to Kauffman, that July ruling by the EEOC, which administers federal statutes addressing employment discrimination, reportedly states that cases of discrimination based on sexual orientation and gender identity can now be heard under the already-protected class of “sex,” which could make the adoption of added protections for the city’s LGBT residents unnecessary.

The News asked an attorney and law professors about that EEOC ruling, and if they believe local protections for the LGBT community are needed if protections already exist at other levels.

Legal opinions

According to Steve Sanders, a professor of constitutional and family law at the Indiana University Maurer School of Law, while it is true that the EEOC has issued rulings stating that discrimination on the basis of sexual orientation and gender identity are a form of discrimination on the basis of sex, there are still notable reasons why local governments interested in adding LGBT protections may still want to pursue ordinances to that effect.

One such reason, he said, is the fact that the EEOC’s rules only apply to employment discrimination claims.

“Even if it does extend protections to sexual orientation and gender identity, the EEOC only covers employment, and these local ordinances typically also cover other things like housing and public accommodations,” Sanders said. “Those two things the EEOC has nothing to do with. So that’s one reason I think a local ordinance makes a difference and makes sense.”

Fellow IU law professor Deborah Widiss noted that although the EEOC resolves discrimination claims against the federal government, courts ultimately decide most discrimination claims against private companies, and courts may not agree with the EEOC’s interpretation of federal law.

“Courts might hold that they do not think that the existing sex discrimination law applies to discrimination on the basis of sexual orientation or gender identity,” Widiss said of the potential issues with the EEOC ruling. “Also, even if courts ultimately do follow the EEOC’s lead on this, employers and employees may not realize that existing sex discrimination law can apply to discrimination on the basis of sexual orientation or gender identity. If local laws state explicitly that such discrimination is prohibited, employers will hopefully do a better job ensuring that such discrimination does not occur in the first place, and employees will never need to file a lawsuit.”

One ruling

According to Barbara McKinney, assistant city attorney for Bloomington and director of the Bloomington Human Rights Commission, at least one federal court has recently agreed with the EEOC’s ruling.

In that case — Roberts v. United Parcel Service — U.S. District Judge Jack B. Weinstein upheld a federal jury’s award of $100,000 in damages to Tameeka Roberts, an employee at the United Parcel Service facility in Maspeth, Queens. Roberts complained that the company had tolerated a hostile environment created by her supervisor and had retaliated against her when she pressed her complaint to the New York State Division of Human Rights.

McKinney went on to note that any legal challenge under a local ordinance, or under the Indiana Civil Rights law, would be heard in Indiana courts, not federal courts.

“State courts are not bound by how the federal courts ruled on similar issues,” McKinney said. “When a state court is trying to interpret a state law or local ordinance that has language that is similar to the federal law’s language, they often look to how the federal courts ruled for guidance. However, there’s no guarantee that a state court, interpreting the state or local language, would defer to how the EEOC and/or federal courts interpreted similar language in the federal law.”

If the EEOC’s interpretation is upheld by the courts, McKinney noted that employees who feel they were discriminated against on the basis of sexual orientation or gender identity could file a complaint with the EEOC instead of, say, the Goshen Community Relations Commission or the Bloomington Human Rights Commission.

However, McKinney pointed to the fact that the EEOC only has jurisdiction over employers with 15 or more employees, leaving smaller employers uncovered.

“And the EEOC, in my experience, takes much, much longer to investigate cases than local commissions do,” McKinney said. “So I would argue that local/state protection will still be important to cover smaller employers, to provide for speedier investigations and to cover issues outside of employment such as housing and public accommodations.”