Little Rock is taking up an ordinance that would codify and extend its nondiscrimination policy, two months after the state Legislature voted to ban localities from passing anti-discrimination laws.
City officials explained Tuesday why they believe the proposed ordinance wouldn't be in violation of Act 137, which takes effect at the end of July.
Act 137 states that cities and counties "shall not adopt or enforce an ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law."
There is an exception that allows cities and counties to have such policies if they are applied only to the locality's own employees.
For the most part, the Little Rock ordinance would apply only to city employees. The city already operates under a policy that prevents hiring decisions based on various identifiers, including ones not recognized under state law such as sexual orientation and gender identity.
The proposed ordinance would extend that policy by requiring the city and its employees to not discriminate against vendors or the public based on the listed identifiers. Doing so is allowed under Act 137.
The ordinance also requires any private business that contracts with the city or any of its committees and commissions to adhere to the nondiscrimination policy. Such entities would include Little Rock Wastewater, the Convention and Visitor's Bureau and the Bill and Hillary Clinton National Airport/Adams Field, among others.
"All contracts providing goods and services to the City of Little Rock shall contain a clause stating that the contracting party shall not discriminate on the basis of race, sex, color, national origin, gender, sexual orientation, gender identity or disability," the ordinance states. "All bid and proposal requests for such contracts from the City of Little Rock shall include notification of such a clause and the requirement that it be agreed to and followed."
Under the ordinance, the city and its employees would be required to not discriminate on the basis of five additional identifiers not required to be listed in vendor contracts. Those are: creed, religion, age, marital status and political opinions or affiliation.
Currently, state law only protects against discrimination based on race, color, national origin, religion, sex, disability and genetic information.
Little Rock Mayor Mark Stodola said the contractor clause wouldn't violate Act 137. City contracts already require businesses to follow all local, state and federal laws, and protections against discrimination based on sexual orientation and gender identity are already recognized by the U.S. Equal Employment Opportunity Commission, he said.
"Under federal law employment issues, including the articulation of the more specific issue of sexual orientation, are already recognized as a right of redress," Stodola said. "To that extent, I don't think this violates [Act 137.] It's just further articulation of those specifics that are found in EEOC regulations and, for that matter, federal housing regulations."
According to the EEOC's website, U.S. law makes it illegal to discriminate on the basis of "race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information." The website clarifies that the commission's definition of sex discrimination includes actions against a transgender person or against homosexuals and bisexuals based on sex-stereotypes, such as the belief that men should only date women.
Arkansas Sen. Bart Hester, R-Cave Springs, sponsored Senate Bill 202, now Act 137. State Rep. Bob Ballinger, R-Hindsville, sponsored the legislation in the House.
Ballinger said by phone Tuesday that Little Rock is working in a gray area. It will likely either take a vendor who doesn't want to agree to the nondiscrimination clause suing the city or the state Legislature taking up the issue to prevent what Little Rock is doing with its ordinance, he said.
"Frankly, I think they have the ability to decide who they contract with. The question is whether or not when you put that you'll only contract with people who agree to back protections not covered under Arkansas law, I think that could be getting close to running afoul of Arkansas law," Ballinger said.
He added that, if passed, Little Rock's ordinance would likely stay in place until someone challenges it.
The Arkansas attorney general's office said through a spokesman Tuesday that any local laws that are contrary to Act 137 cannot be enforced once the act becomes law. When asked if the office had guidance on whether the proposed Little Rock ordinance would violate Act 137, spokesman Judd Deere replied, "All I have for you is the statement I sent."
First-term Little Rock City Director Kathy Webb, who represents Ward 3 and is a former state representative, proposed the nondiscrimination ordinance. Webb is gay and has said Act 137 protects discrimination against gays.
She spoke little at Tuesday's agenda meeting.
At the meeting, multiple city board members said the ordinance just codifies what the city already practices.
City Attorney Tom Carpenter explained afterward that the city already requires contractors to sign a nondiscrimination clause that states they will follow federal law. Sexual orientation and gender identification are included in federal protections, he said, so this ordinance adds those classes to the contract language but doesn't change the city's practice.
Carpenter also said that city commissions are already required to follow the city's purchasing policies, which include contract language.
In short, he said the change the ordinance makes is just spelling out what is already practiced and in effect.
Ward 7 City Director B.J. Wyrick questioned Tuesday whether some city officials were trying to put the ordinance in place to set up grounds for a lawsuit challenging Act 137.
The board is scheduled to vote on the ordinance at Tuesday's board meeting.
The Little Rock Regional Chamber of Commerce "fully supports" the ordinance, President and Chief Executive Officer Jay Chesshir wrote in an email to the city. According to city directors comments' Tuesday, Chesshir had a hand in writing the ordinance with Webb.
The Family Council -- a conservative nonprofit that opposes abortion and same-sex marriage -- issued a statement saying the ordinance is unnecessary.
Family Council founder Jerry Cox wrote that there's no proof anyone is being discriminated against in Little Rock when it comes to hiring or firing based on sexual orientation or gender.
"The fact that this ordinance apparently seeks to regulate private business is especially troubling," he said.
When the city created a new policy last year banning the employment of certain high-level sex offenders, City Manager Bruce Moore chose not to require businesses that contract with the city to adhere to the policy. He also didn't require city commissions to adopt the employment policy and several city-affiliated entities chose not to.
Moore said at the time that the city "probably would be overstepping our authority in dealing with private enterprise" and that officials "weren't sure constitutionally if we could do something like that."
When asked Tuesday the difference in applying the sex offender employment policy to vendors versus the anti-discrimination policy, Moore said the nondiscrimination ordinance doesn't tell businesses who they can or can't hire.
"I still believe we can't tell a company who wants to do business with the city who they can hire and who they can't, but I clearly can say if you want to do business with the city, that you must agree not to discriminate. I see that totally different -- employment versus company practices," Moore said.
Metro on 04/15/2015