Hundreds of Cities Enact Ordinances Prohibiting Sexual Orientation Employment Discrimination When States Fail to Take Action

About half of all U.S. states, including New Jersey, and the District of Columbia have enacted legislation prohibiting employers from discriminating based on sexual orientation. In many states, these laws also protect gender identity and expression. Federal law still does not provide explicit protection in these areas. City and county governments have stepped up in many of the states that lack statewide protection. Some city ordinances only apply to public employment, and some only cover sexual orientation. Many, however, apply to both public and private employment and cover gender identity as well as sexual orientation.

A rather dramatic fight over the issue occurred recently in Pocatello, Idaho, where voters narrowly defeated a proposal to repeal an ordinance that the voters passed last year. The ordinance went on to survive a court challenge and a recount.

At least eight cities in Idaho have enacted non-discrimination ordinances that include both sexual orientation and gender identity in both public and private employment. The Human Rights Campaign lists five: Boise, Coeur d’Alene, Ketchum, Moscow, and Sandpoint. Idaho Falls passed a non-discrimination ordinance in September 2013, and Victor, a small town near the Wyoming state line, enacted one in June 2014. Pocatello’s ordinance, described in more detail below, passed two public votes in the space of one year. At least two Idaho cities, Meridian and Nampa, prohibit discrimination based on sexual orientation and gender identity in public employment only. Lewiston and Twin Falls limit protection to discrimination based on sexual orientation in public employment.

Voters in Pocatello, a town of just over 50,000 in the southeast part of the state, passed the ordinance by a popular vote in June 2013. It amended the municipal code to include sexual orientation and gender identity in the list of protected classes, finding that “discrimination on the basis of sexual orientation and gender identity/expression must be addressed, and appropriate legislation enacted.” Pocatello City Code § 9.36.010(A).

Opponents of the non-discrimination ordinance put a repeal initiative, Proposition 1, on the ballot earlier this year. Voters narrowly rejected the initiative in May, with an initial margin of 80 votes. A campaign organized to support the initiative paid for a recount, which reduced the margin to 56 votes but still went in favor of the non-discrimination ordinance. A lawsuit against the county clerk sought additional information about the election, but it was eventually dismissed by agreement of the parties.

New Jersey’s Law Against Discrimination, which applies statewide, contains protections for employees from discrimination on the basis of sexual orientation, gender identity, and gender expression. N.J. Rev. Stat. § 10:5-12(a). Title VII of the Civil Rights Act of 1964, which covers employment discrimination at the federal level, does not provide explicit protection for sexual orientation or gender identity, but the federal government has offered some protection in other ways. President Obama issued an executive order in July 2014 prohibiting these types of discrimination by government contractors. Federal agencies have also expanded their interpretations of various employment statutes, such as the Family and Medical Leave Act, in response to various state laws and the U.S. Supreme Court’s 2013 ruling in United States v. Windsor.

The Resnick Law Group’s employment attorneys advocate for rights of employees in New Jersey and New York under municipal, state, and federal law. To schedule a confidential consultation to discuss your case and see how we can help you, please contact us today online, at 973-781-1204, or at (646) 867-7997.

More Blog Posts:

Retail Chain Allegedly Fired Gay Male Employees to Cut Costs, According to Lawsuit, The New Jersey Employment Law Firm Blog, July 15, 2014
Teacher Sues New York School, Alleging Discrimination and Firing Based on Age, Marital Status, Sex, and Sexual Orientation, The New Jersey Employment Law Firm Blog, July 7, 2014
Federal Judge Holds that Employment Discrimination Based on Sexual Orientation Is Already Prohibited by Title VII, The New Jersey Employment Law Firm Blog, May 15, 2014

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