FAYETTEVILLE -- The signs are up.
The campaigns have entered the home stretch.
Web Watch
Go to nwadg.com/civilrigh… to read a copy of Fayetteville’s Uniform Civil Rights Protection ordinance.
And, despite a recent lawsuit, voters will head to the polls for the second time in less than nine months to determine the fate of a citywide law aimed at protecting gay, lesbian, bisexual and transgender residents from discrimination.
A yes vote in Tuesday's election is a vote for Ordinance No. 5781, also called the Uniform Civil Rights Protection article. A no vote would repeal the contentious law.
Here are a few things to know before casting a ballot Tuesday.
Q. Didn't we already vote on this?
A. Sort of, but not really.
A similar Civil Rights Administration ordinance was up for a public vote Dec. 9. Like the latest law, it prohibited discrimination in employment, housing and places of public accommodation on the basis of sexual orientation and gender identity. Of the 14,580 people who cast ballots in that election, 7,527, or roughly 52 percent, voted to repeal the previous ordinance and 7,047, or 48 percent, voted against repeal -- a difference of 480 votes.
While the intent of the latest law is the same as the Civil Rights Administration ordinance, the language is different. Residents are being asked to vote on a new proposal.
Q. How is the latest law different than what was repealed last time around?
A. It's different in several ways.
For one, the Uniform Civil Rights Protection ordinance does not include terms, such as "perceived" characteristics and "socioeconomic background," that opponents -- namely the Fayetteville Chamber of Commerce -- called ambiguous and unworkable in the run-up to last year's election.
It borrows definitions and directly references existing state law, including the Arkansas Civil Rights Act of 1993 and the Arkansas Fair Housing Act. By comparison, Alderman Matthew Petty, who sponsored the Civil Rights Administration ordinance, used language from the Human Rights Campaign, the nation's largest LGBT advocacy organization, as a starting point for the prior proposal.
The latest law also establishes a seven-member Civil Rights Commission to review complaints and decide whether a violation has occurred. The previous ordinance would have left those determinations to a single municipal civil rights administrator.
The Civil Rights Commission will be appointed by the City Council. It will consist of two representatives of the business community; two owners or managers of rental property; one representative with experience in human resources or employment law; and two residents at-large, at least one of whom identifies as gay, lesbian, bisexual or transgender.
Members of the commission will serve staggered, three-year terms.
Q. How did the current proposal come about?
A. Through behind-the-scenes discussions among elected leaders and local lawyers.
In a matter of weeks after the Civil Rights Administration ordinance was repealed, Petty and City Attorney Kit Williams came up with alternate proposals for a revised anti-discrimination law.
Williams suggested extending protections given to women, disabled people and racial, ethnic and religious minorities in the Arkansas Civil Rights Act to gay and lesbian residents in Fayetteville.
According to representatives for the pro-ordinance For Fayetteville campaign, efforts began to craft an ordinance based on Williams' framework. They also attempted to address some of opponents' concerns with the repealed law.
By several accounts, Petty, Williams, Alderwoman Adella Gray, Kyle Smith, former board president for the NWA Center for Equality; Danielle Weatherby, an assistant law professor at the University of Arkansas; and Mark Martin, a Fayetteville lawyer specializing in labor law and workers' compensation issues; were involved with the effort.
After the group came up with new ordinance language, they ran the proposal by other interested parties, including Eva Madison, a lawyer with the Littler Mendelson law firm, and Steve Clark, president and CEO of the Chamber of Commerce.
Gray and Petty co-sponsored the revised ordinance and presented it to the public June 5.
After nearly four hours of debate June 16, the City Council voted 6-2 to refer the issue to a special election. Aldermen Gray, Petty, Mark Kinion, Alan Long, Sarah Marsh and Justin Tennant voted for the measure. Aldermen John La Tour and Martin Schoppmeyer voted against.
The ordinance cleared all three readings during a single meeting.
Q. Who would be subject to the ordinance?
A. The same people who are subject to the Arkansas Civil Rights Act and the Arkansas Fair Housing Act.
The Arkansas Civil Rights Act applies to businesses that employ nine or more employees in Arkansas and all places of "public resort, accommodation, assemblage or amusement," including retail stores, restaurants, hospitals and hotels with five or more rooms for rent.
The Arkansas Fair Housing Act applies to all real estate brokers or salesmen, meaning anyone who "lists, sells, purchases, exchanges, rents or leases real property" in the state.
The state laws prohibit businesses and real estate brokers from firing, refusing to hire, denying housing to or refusing service to someone because of his race, religion, national origin, gender or disability.
Aggrieved parties are entitled to back pay and, in some cases, the cost of litigation and reasonable attorney's fees under the state Civil Rights Act. Violators of the Civil Rights Act can also be ordered to pay compensatory and punitive damages ranging from $15,000 to $300,000 depending on the size of the business.
Q. What happens when a complaint is filed?
A. It's a multistep process.
People making complaints under Fayetteville's ordinance must present the complaint in writing to the city attorney's office within 90 days of when they became aware of an act of discrimination. The city attorney's office then has two business days to notify the Civil Rights Commission that a complaint has been made.
First, the city will make attempts at confidential and informal mediation.
It's unclear who will be responsible for the mediation. Williams said earlier this year he thought the city's human resources director would be, but Don Marr, Mayor Lioneld Jordan's chief of staff, recently said, "The mayor has not made an appointment or a decision on who that will be."
If attempts at mediation are successful in resolving the complaint, no further action will be taken.
If mediation fails, the complaint will be heard by the Civil Rights Commission. If commissioners find evidence of discrimination, they can refer the complaint to the city prosecutor's office. It's then up to the city prosecutor whether to bring charges.
Violations are not a felony or misdemeanor offense. Offenders could be charged with violating a city ordinance -- similar to a traffic violation or a zoning infraction -- and would be subject of fines of up to $100 on the first offense. Subsequent offenses carry fines of up to $500.
Q. Will the ordinance force clergy to officiate gay weddings?
A. No.
In fact, "churches, religious schools and day care facilities and religious organizations of any kind" are exempt from all provisions in the law.
However, private business owners would be required to provide services to LGBT customers, even if they find homosexuality to be morally objectionable.
Critics of the ordinance have used the example of florists, bakers and caterers, saying business owners with sincerely held religious beliefs shouldn't be compelled to participate in gay marriage ceremonies against their will.
Ordinance supporters say no one should be denied service because of their sexual orientation or gender identity.
Q. Aren't gays and lesbians already protected under state and federal law?
A. Technically no, but there's emerging case law that would give gay, lesbian and transgender residents legal standing for filing complaints with the U.S. Equal Employment Opportunity Commission.
The Arkansas Civil Rights Act of 1993 and Title VII of the Federal Civil Rights Act of 1964 prohibit discrimination on the basis of gender, race, national origin and religion, but they do not offer similar protection for LGBT residents.
"There's really not any state law protection for LGBT individuals under Arkansas state law," said William Cash, director of the Little Rock area EEOC office, on Wednesday.
In the past, that meant someone who was told, "You're gay, we don't want you working here," didn't have a legal basis for lodging a complaint.
Recently, the EEOC has begun pursuing those types of complaints as a form of gender discrimination.
"Discrimination against a person because of the person's sexual orientation is discrimination based on sex and is prohibited under Title VII," Cash said, adding, "This is essentially a sea change."
Arkansas is one of just a handful of states that doesn't have a state human rights commission, so complaints of workplace discrimination are handled by the EEOC.
Q. Didn't state legislators pass a law blocking these types of ordinances?
A. Yes. But there are varying legal opinions about whether the legislation they passed actually prohibits several cities' anti-discrimination laws, including Fayetteville's.
Act 137 was sponsored by Sen. Bart Hester, R-Cave Springs, in the Arkansas Senate and Rep. Bob Ballinger, R-Hindsville, in the Arkansas House of Representatives, and cleared the state Legislature earlier this year.
The law restricts cities and counties from enacting or enforcing "an ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law."
Travis Story, general counsel for Protect Fayetteville, the group opposing Fayetteville's Uniform Civil Rights Protection ordinance, argued in a lawsuit filed Monday that, because sexual orientation and gender identity are not referenced in the state Civil Rights Act, Fayetteville's ordinance creates a new protected class and is, thus, illegal.
Williams and Little Rock City Attorney Tom Carpenter have cited other sections of state law dealing with bullying in public schools and domestic-abuse shelters that do mention sexual orientation and gender identity.
They say, therefore, those protections have a legal basis and can be included in municipal ordinances.
A judge has not ruled in the matter.
Q. Who's paying for each campaign?
A. Dozens of donors from inside and outside of Fayetteville.
The campaigns for and against the Uniform Civil Rights Protection ordinance have each reported more than $35,000 in monetary contributions to the Arkansas Ethics Commission.
Through July 31, the largest donors to the pro-ordinance For Fayetteville campaign were Kirk Thompson, board chairman and former CEO of J.B. Hunt Transport Inc. ($10,000); Bryan Bair, who owns Maverx Medical LLC in Springdale ($4,000); and Kyle Smith, the group's president ($2,170).
As of the close of business Friday, a financial report listing For Fayetteville's more recent contributions had not been posted to the Ethics Commission website. The report was supposed to have been sent or postmarked by Tuesday.
Protect Fayetteville's largest donors through Tuesday were Baldwin Christian Church ($10,000); Ronald Branscum, president of Arkansas Regional Therapy Services Inc. ($5,000); and Fayetteville's Joe and Kim Maynard family ($4,000), according to the group's financial reports.
The reports can be found online at the Ethics Commission's website, arkansasethics.com.
Q. How do I vote?
A. Go to any one of 17 polling sites between 7:30 a.m. and 7:30 p.m. Tuesday.
According to County Clerk Becky Lewallen, 4,075 people voted during four days of early voting at the Washington County County Courthouse last week.
That's 418 fewer votes than the 4,493 residents who cast early ballots in the Dec. 9 election on the city's previous Civil Rights Administration ordinance. But last year, there were five days of early voting.
Total turnout for the Dec. 9 election was 14,580 -- about 29 percent of the 49,559 residents who were registered to vote at the time.
Residents will be able to vote at any one of 17 polling sites Tuesday. For a list of all 17 sites, go to the Washington County Election Commission's page on the county's website, www.co.washington.ar.us.
To check your voter registration status, go to voterview.org.
Only electronic, touch-screen machines will be available Tuesday. Jennifer Price, county election coordinator, said poll workers will use tablets to keep track of everyone who has voted at each polling site.
"They link up to a site, and they all talk to one another over a secure website in real time," Price explained. "So, when I go to the Yvonne Richardson Center and I cast my ballot, if I were to get in my car and try to drive to Central (United Methodist Church), when I get to Central, it's going to show that I have already voted."
NW News on 09/06/2015