Everything You Need To Know About the Fayetteville Civil Rights Ordinance Proposal August 19, 2014

In a three hour Fayetteville City Council meeting on Aug. 5, citizens of Fayetteville voiced their concerns for an anti-discrimination ordinance proposed by Alderman Matthew Petty. Those who opposed the ordinance said that the bill would infringe on their first amendment rights.

“I brought this forward because I’m against discrimination,” Petty said at the meeting, “and I think Fayetteville has a history of doing the right thing and it’s an opportunity to get, in what is my opinion, a good law passed.”

The Human Rights Campaign, an organization devoted to advocating for the legal equality of the LGBT community, helped contribute to the draft of the initial bill.

If passed at the Tuesday, Aug. 19, City Council meeting, the ordinance would create a civil rights administrator position. This city staff member would field complaints from residents who feel they’ve been discriminated against during housing transactions, employment decisions, and other public accommodations in Fayetteville.

The position’s responsibilities will be added on to an existing staff member. It has not yet been determined who this will be.

Most recently, Michelle Duggar sent out an automated phone call to Fayetteville residents claiming that the ordinance would allow for men to enter women’s public restrooms. At the City Council meeting, some Fayetteville residents stated they thought the ordinance was “anti-christian.”

Those in favor of the bill have organized a Facebook event calling on those who wish to attend to wear red to show their support for the ordinance. As of 11 p.m. Monday night, the event had 368 users who said they would be attending.

In a special meeting on Monday, the City Council voted to cancel the plans to move the meeting to the Town Hall (to provide for more attendance) so they could live stream Tuesday’s meeting. The doors will open at 4:30 p.m.

The Free Weekly contacted Kit Williams, Fayetteville city attorney, for some legal clarification of the ordinance, and what it would enact, to clear up any potential misconceptions.

Here is our Q&A:

TFW: Who will this proposed ordinance provide legal protection for?

Williams: Well, it’s got all kinds of categories in there. Many of these categories for race, religion and things like that already receive protection by the Civil Rights act of 1964 and other acts like the Americans with Disabilities Act. This ordinance mentions many of those same categories and says discrimination cannot occur there. It also adds some additional categories that are not currently or directly 100 percent protected by state or federal law. Those categories are gender preference and gender identification (Lesbian, Gay, Bisexual, Transgender [LGBT]) as well as social economic status. That’s a category that isn’t crystal clear with (the City Council’s) intent. Basically, if someone comes from a lower economic strata from their past, they should not be discriminated against, which I don’t know if that’s ever done. But it might be done, who knows.

The other thing it does is an extension of protection from federal laws on employment protection, to protect various classes, which generally only apply at least to a moderately sized employer with 15 employees or more, which can be many businesses obviously. This ordinance will extend that to businesses with five employees, which I don’t think the federal statutes get. So, more classes of people will be protected so you can’t be discriminated against because you are LGBT.

TFW: At the Aug. 5 City Council meeting, Jeremy Flanagan, senior pastor at Pathway Baptist Church, said that these protections could provide an avenue for men who say they identify as women to be allowed access to public bathrooms and vice versa. He also said that passing the ordinance could potentially allow for pedophiles and sexual predators to abuse the system. Are his statements valid?

Williams: I really don’t think so. This is a little city ordinance. It doesn’t trap or control state law. We have 10 provisions of state law, such as disorderly conduct as well as indecent exposure, that both have limitations on persons that would expose themselves in a public space like a bathroom. So I will say the ordinance never mentions bathrooms. It just talks about how you’re not supposed to discriminate against people for using facilities. Of course, facilities could mean bathrooms, and that’s what they’ve latched onto.

I think there is an unwarranted — but not necessarily totally unreasonable — fear on the part of some people that this could cause problems. I really don’t think it would. It might be that an alderman would want to propose an amendment that would not actually change the true effect of this ordinance, because I don’t think it would have any real effect on bathrooms at all, but that it would clearly state that it would not take away a manager or owner’s rights to basically ensure that inappropriate people do no go into the wrong bathroom.

TFW: A part of this is appointing a civil rights administrator that would handle complaints. Other than that, what is their purpose, and what authority would this position have?

Williams: At this point in time we don’t realize whether or not there will be any complaints. The civil rights administrator basically only takes the complaint and probably contacts the other side of what their issue is, and if possible, will work out some kind of compromise or conciliation between the two parties and see if everything can just be resolved. If that doesn’t work, and the civil rights administrator believes that there probably has been some discrimination, and the owner or manager person will not stop, then the civil rights administrator really has no further power than to recommend to the complainant that they go talk to the prosecutor. If the prosecutor sees that there’s sufficient evidence and reason to file a violation of an ordinance against the complained against person, they could potentially be fined. The person who was discriminated against is not entitled to any damages or anything else like that under the ordinance.

Therefore, it’s probably unlikely that if someone has a good discrimination case, they much more likely would be going through the Civil Rights Act, which does provide damages for someone who’s been aggrieved by illegal discrimination. For most categories, they kept the categories of homosexuality and transgender — which I didn’t think transgender was a protected class until I was educated that the Supreme Court has interpreted sexual discrimination to also mean how the sexes look. With discrimination based upon how, someone might say, “You don’t look like the kind of woman we want you to look like,” the Supreme Court determined therefore people who are transgender probably have some protection under the civil rights act, even though initially it was not perceived or believed that it would be the case.

Now, homosexual rights are not in the Civil Rights Act. Generally, even though they are protected by presidential decree about any entity that is caught in any federal contractor who has got at least I think $10,000 in federal contracts. The University of Arkansas just changed their discrimination policy to conform with that, and the city gets federal grants also, but I think our policy within the city already prohibits against any discrimination like that. I think we’re covered by that, and the university is an all-federal contractor, but not all private businesses. So ours would then extend that kind of protection to private businesses, and the employees of private businesses.

TFW: So essentially, the intention with the civil rights administrator is to offer a resource for people who feel they need representation?

Williams: Well, basically a resource for someone to talk to about it and see whether or not there is any reason that the administrator should contact the employer or business. Then if they do, in order to see if something can be worked out amicably between the complainant and the business. Basically, they’re there to try to resolve things, and if that’s impossible, then the complainant has the right to go to the city prosecutor.

The prosecutor has great discretion. The prosecutor might say, “I understand your complaint, but I don’t think it’s a violation, and I don’t think it violates the ordinance in a beyond reasonable doubt manner, or you don’t have enough evidence…” or whatever. So the prosecutor has tremendous discretion on whether or not to go forward. In the right case, the prosecutor can go forward, and actually file a ordinance violation claim against someone that can lead to a fine.

TFW: Based on the statements made by those who spoke against the ordinance at the Aug. 5 meeting, some people said they have fears that this ordinance would interfere with their faith. For instance, if someone is a member of a church that says it doesn’t believe in homosexuality, and they don’t want to associate with those who are, could someone bring up a prosecution against them?

Williams: Well, there’s a minor potential of some problems the way this was originally written. We certainly exempted the use of the sanctuary or the chapel for weddings this church might not agree with, but there is still some language that would mean that if they have meeting rooms that they rent out to outside groups that aren’t associated with the church, then they couldn’t discriminate and might be required to rent out the rooms to a group they would not agree with. If they’re acting like a rental place and they’re renting offices out, then they could not do that discriminatorily. So there is some chance of some problem there.

There’s also for any of their employees, if any, that don’t have any kind of religious duties, for example, let’s say they’re a receptionist. All the receptionist does is answer phone calls and says, “Hi, can I help you?” and doesn’t do anything with the religious emphasis of the church, then federal law — under the Civil Rights Act — would be susceptible to not be discriminated against for many reasons. Ours would go further. It would say you couldn’t discriminate against them because they were LGBT.

Alderman Long has indicated he wants to fully exempt churches, and this is probably not really a bad idea from a litigation danger point. As city attorney I have the right comment on ordinances for their constitutionality, legality, and also whether or not they’re creating unnecessary litigation dangers.

I’m very protective of my legal beliefs that we do have a law of separation between church and state. The state needs to be very careful about trying to regulate portions or things that could happen in a church that might intrude upon their religious beliefs regardless whether I or the majority of people believe those are valid religious beliefs, because it’s for them to decide not for us. So, I think it might be a good idea to fully exempt the churches just so that we are ensuring ourselves we are not intruding upon religious freedom.