After more than five hours of heated debate and public discourse, the Phoenix City Council amended the Phoenix City Code to ban discrimination in employment on the basis of “sexual orientation,” “gender identity or expression” and “disability.” Phoenix City Ordinance No. G-5780.
The ordinance applies to all employers who are “doing business within the city of Phoenix” and have “one or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” The ordinance, however, specifically exempts bona fide religious organizations and private membership clubs. Notably, the ordinance does not extend protection to independent contractors. Instead, it only prohibits discrimination against “employees” who are defined as “any individual employed for pay to perform services for an employer covered by this article and whose activities are controlled and directed by the employer for whom the services are being performed.”
Previously, the Phoenix Human Relations Ordinance only prohibited discrimination in employment on the basis of race, color, religion, sex, national origin, age, genetic information or marital status. The City Council has now added “gender identity or expression,” “sexual orientation” and “disability” to the list of protected classes of employees.
The ordinance defines “gender identity or expression” as “an individual’s self-identification as male, female, or something in between, and shall include the individual’s appearance, mannerisms, or other characteristics only insofar as they relate to gender, with or without regard to the individual’s designated sex at birth.”
“Sexual orientation” is defined as “an enduring pattern of emotional, romantic, or sexual attractions to men, women, or both sexes as well as the genders that accompany them and shall include discrimination based upon the identification, perception, or status of an individual’s same-sex, opposite-sex, or bisexual orientation.”
Finally, “disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities of the individual, a record of such physical or mental impairment, or being regarded as having such physical or mental impairment.”
With respect to the prohibition of disability discrimination in employment, the ordinance specifically prohibits an employer’s: failure to engage in the interactive process, failure to provide reasonable accommodations of an employee’s disability, and utilization of qualifications, standards or other selection criteria that screen out disabled individuals unless the criteria are job related and consistent with business necessity.
A violation of the ordinance is a Class 1 misdemeanor, punishable by a fine up to $2,500, or imprisonment for a term not to exceed six months, or probation not to exceed three years or any combination of fines and imprisonment, plus probation. This is the sole remedy for a violation. The ordinance does not create a “private cause of action” against an employer for a violation of the ordinance.
The ordinance became effective on March 28. Thus, employers conducting business within the city of Phoenix should consider reviewing and updating their employment policies and employee handbooks to make clear that the employer prohibits discrimination against all protected classes, including sexual orientation, gender identity or expression and disability.
• Brian Foster is a 20-year Ahwatukee resident and senior partner at Snell & Wilmer L.L.P. in Phoenix. Reach him at (602) 382-6242 or firstname.lastname@example.org. Kathryn Hackett King, Joshua R. Woodard and Jennifer R. Phillips contributed to this column.