The nondiscrimination ordinance being considered by the Little Rock Board of Directors tonight wouldn't violate Arkansas law because state law already protects against discrimination based on sexual orientation and gender identity, City Attorney Tom Carpenter said.
In response to a request from at-large City Director Joan Adcock, Carpenter issued an opinion Sunday evening telling board members that they don't have to worry about the ordinance being voided once the state's Act 137 takes effect in late July.
If passed, the ordinance would codify a city employment policy that states officials may not discriminate on the basis of a range of factors, including in several regards that aren't listed in the state's Civil Rights Act. It would also update a nondiscrimination clause in city contracts, effectively making businesses that contract with the city agree to not discriminate on the basis of "race, color, creed, religion, sex, national origin, age, disability, marital status, sexual orientation, gender identity or genetic information."
A previous version of the ordinance had fewer classes that contractors had to agree to not discriminate against, but after the Arkansas Democrat-Gazette pointed that out to city officials, they said it was a mistake and updated the ordinance with the full list quoted above.
The Arkansas Civil Rights Act only lists "race, color, national origin, religion, sex, disability and genetic information" as classes protected against discrimination.
Act 137 -- passed by the Arkansas Legislature in February and set to take effect 90 days after the end of the session -- prohibits cities and counties from creating an additional protected class not listed in state law or enforcing a rule to not discriminate on the basis of a class not mentioned in state law.
But even though the Civil Rights Act only lists seven classes, other parts of state law already protect the additional five classes listed in the city ordinance, Carpenter said.
In regards to sexual orientation and gender identity -- which have been receiving the most attention for their inclusion in the city ordinance -- Carpenter cited the state's anti-bullying law, Arkansas Code Annotated 6-18-514, that prohibits bullying of a public school student or employee. The law defines bullying as harassment, ridicule or threat based on an attribute of another person.
The statute defines an attribute as "an actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health conditions or sexual orientation."
Another statute, Arkansas Code Annotated 9-4-106, requires shelters to adopt a nondiscrimination policy to provide services "without regard to ... sexual preference," among other attributes.
Carpenter also pointed out that the state doesn't limit sexual identity to the sex declared at birth, because Arkansas Code Annotated 20-18-307(d) requires the state to change the sex listed on a person's birth certificate if a surgical procedure has changed that person's sex.
As for the other attributes protected in the ordinance, Carpenter wrote that they are mentioned somewhere in state law, including in the Arkansas Constitution, the Arkansas Fair Housing Act, the Age Discrimination Act, Arkansas Code Annotated 21-12-103 about the dismissal of public employees for discrimination and Arkansas Code Annotated 11-5-403, which prohibits use of genetic test information, among other statutes.
"The proposed ordinance does not violate Arkansas law, specifically Act 137 of 2015, because every prohibition against discrimination named is already named somewhere in state law," Carpenter wrote in his opinion. "Further, the proposed ordinance is consistent with interpretation by the Arkansas Supreme Court of the Equal Protection clause of the Arkansas Constitution. Finally, the proposed ordinance is also in conformity with federal law and regulations that bar discrimination."
Little Rock city officials have always maintained that federal entities recognized sexual orientation and gender identity as attributes protected against discrimination, but Carpenter's opinion is the first time that the city has said that state law already protects against that, too.
State Sen. Bart Hester, R-Cave Springs, proposed Act 137 after the Fayetteville City Council passed an ordinance last year that added sexual orientation and gender identity as additional protected classes that city businesses couldn't discriminate against. Voters repealed that ordinance in December.
Act 137 makes it illegal for a locality to create a new protected class or enforce the prohibition of discrimination on a basis not already contained in state law.
Carpenter's opinion notes that the Little Rock ordinance doesn't create a protected class but rather requires the city's employees and any business signing a contract with the city to agree not to discriminate on the basis of a range of attributes.
Hester has not returned voice messages and emails seeking comment on the Little Rock ordinance. State Rep. Bob Ballinger, R-Hindsville, didn't return an email Monday seeking comment on Carpenter's opinion but has previously told the Democrat-Gazette that Little Rock is operating in a "gray area" with the proposed ordinance.
First-term Ward 3 City Director Kathy Webb, who is gay, proposed the nondiscrimination ordinance. She has said Act 137 is bad legislation and allows discrimination against gays.
Act 137 has an exception for policies or rules that apply only to a localities' own employees.
In addition to the conditions that the Little Rock ordinance would have contractors agree to, it also has city employees agree to not discriminate on the basis of political affiliation.
"Since the state statutory or constitutional provisions quoted above are already in place, the argument that anything in the proposed ordinance violates state law, and therefore violates [Act 137], is easily dispatched," Carpenter wrote. "After all, '[t]o give the same words a different meaning for each category would be to invent a statute rather than interpret one.' Burwell v. Hobby Lobby Stores Inc. ... (2014)."
Metro on 04/21/2015