Chapter 9.35
HUMAN RIGHTS
Sections:
9.35.050 Defenses, exceptions and exemptions.
9.35.060 Discrimination in employment.
9.35.070 Discrimination in housing.
9.35.080 Discrimination by business establishments.
9.35.090 Discrimination in provision of city facilities and services.
9.35.110 Complaints, resolution of disputes, and enforcement.
9.35.120 Rules of procedure of Human Relations Commission.
9.35.130 Confidentiality of proceedings.
9.35.140 Retaliation prohibited.
9.35.160 Time limit for filing civil actions.
9.35.170 Criminal liability for violations.
9.35.190 Severability; conformance with state and federal laws.
9.35.010 Policy.
(a) The city is dedicated to preserving the rights of all persons to have an equal opportunity to live, work, and prosper in the community. It is the policy of the city that all persons shall be free from all forms of unlawful discrimination and harassment as prohibited under this article, or federal or state law.
(b) It is the intent of the city in enacting this article to confirm that the fundamental rights of citizens include the right to live unfettered by unlawful discrimination and harassment and this right is consistent with the American ideals of individual freedom, liberty, and responsibility for one’s own actions. Furthermore, it is the intent of the city in enacting this article that access to remedies and resolution under existing federal and state laws on unlawful discrimination will be enhanced by providing a local forum for the resolution of complaints, and that it is necessary and proper to enact local regulations establishing a voluntary process for timely resolution of complaints of discrimination that arise within the city.
(c) This article shall not be construed to confer any right or privilege on a person which is conditioned or limited by law nor to impose regulations which are beyond the power of the city to regulate and/or which are preempted by federal and/or state law, nor is this article to be construed to protect conduct which is otherwise unlawful under city, state, or federal law or regulation.
(d) It is the policy of the city that, insofar as federal and state law is applicable to matters of unlawful discrimination, voluntary compliance therewith should be fostered by the city Human Relations Commission utilizing the procedures set forth herein.
(Code 1965, § 4970; Code 2002, § 46-31. Ord. No. 91-6)
9.35.010 Education.
(a) The Human Relations Commission is authorized to plan, promote, and develop community-oriented education programs and events to foster positive human relations, equal opportunity, and greater understanding and appreciation of the city’s cultural, ethnic, and racial diversity. The city reserves the right to independently plan and develop such programs.
(b) Proposed educational programs and events developed by the Human Relations Commission, and which are to be funded in whole or in part by the city, shall be submitted to the City Council prior to the adoption of the budget for the fiscal year in which the proposed educational programs and events will be held. Failure of the city to fund a proposed educational program or event shall not preclude the Human Relations Commission from seeking private sources of funding for the events.
(c) Educational goals and objectives may include, but need not be limited to, the following:
(1) Support the rights of all persons to be free from all forms of discrimination prohibited by city, state, and federal law;
(2) Develop programs and events which foster positive human relations through greater community education and understanding;
(3) Encourage private persons, groups, organizations, and businesses to promote better human relations and equal opportunity.
(d) Education programs and events may include, but are not limited to, the following:
(1) Community forums;
(2) Speakers, lecturers;
(3) Events which recognize and promote the city’s cultural, ethnic, and racial diversity;
(4) Essay, art, or other contests;
(5) Annual Human Relations Commission recognition and awards dinner;
(6) Annual award to the person, business, or other organization who best exemplifies the city’s goals of promoting better human relations;
(7) Participation in events and programs sponsored by other agencies, businesses, and organizations.
(Code 1965, § 4971; Code 2002, § 46-32. Ord. No. 91-6)
9.35.030 Scope of article.
This article applies to all discriminatory practices, harassment, and inter-group tensions resulting therefrom covered by the provisions of this article. Nothing in this article, however, shall be interpreted or applied so as to create any power, duty, defense, exception, or exemption in conflict with the preemptive effect on any federal or state law. It is the intent of the City Council that this article be interpreted broadly so as to address as much discrimination as possible.
(Code 1965, § 4972; Code 2002, § 46-33. Ord. No. 91-6)
9.35.040 Definitions.
Discrimination.
(1) Any act, policy, or practice which selects a person or class of persons for differential treatment on arbitrary bases as set forth in federal and state civil rights laws, as they may be amended from time to time, and cases interpreting them, including but not limited to the following:
a. Federal law.
1. The United States Constitution.
2. The Civil Rights Act of 1964.
3. The Rehabilitation Act of 1973.
4. The American with Disabilities Act of 1990.
b. State law.
1. The California Constitution.
2. The Unruh Civil Rights Act/The Ralph Civil Rights Act of 1976.
3. The Fair Employment and Housing Act.
(2) This listing of federal and state laws that contain examples of protected classes is intended to be illustrative and not restrictive.
(3) “Discrimination” includes the assertion of an otherwise valid reason for selection as a subterfuge for prohibited discrimination. For purposes of this article, “discrimination” shall also include references to “unlawful discrimination,” “discrimination on an arbitrary basis,” and all logical derivations of the word “discriminate.”
Employee. Any individual employed by, or seeking employment from, an employer or terminated by an employer, but does not include any individual employed by his parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
Employer. Any person regularly employing five or more persons, or any person acting as an agent of an employer directly or indirectly.
Employment agency. Any person or business that procures employees or opportunities to work for compensation.
Harassment. Includes, but is not limited to:
(1) Verbal harassment (e.g., epithets, derogatory comments, or slurs on the basis set forth in this article);
(2) Physical harassment (e.g., assault impeding or blocking movement, or any physical interference with normal work or movement when directed at an individual on the basis set forth in this article);
(3) Visual forms of harassment (e.g., derogatory posters, cartoons, or drawings on the basis set forth in this article);
(4) Sexual harassment (e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors).
In applying this subsection, the rights of free speech and association shall be accommodated consistent with this subsection.
Labor organization. Includes any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or other mutual aid or protection.
Person. Any natural person or a firm, corporation, partnership, or other organization or group of persons however organized, including the city.
Transaction in real property. Exhibition, listing, advertising, negotiating, financing, agreeing to transfer or transferring, whether by sale, lease, sublease, rent, assignment, or other agreement, of any interest in real property or improvements thereon, including but not limited to leaseholds and other real chattels.
The above definitions are intended to complement rather than conflict with corresponding provisions of federal and state law.
(Code 1965, § 4973; Code 2002, § 46-34. Ord. No. 91-6)
Cross references: Definitions generally, § 1.05.100.
9.35.050 Defenses, exceptions and exemptions.
(a) Any practice which has a discriminatory effect and which would otherwise be prohibited by this article shall not be deemed unlawful if it can be established that such practice is not intentionally devised or operated to contravene the prohibitions of this article and can be justified by business necessity.
(b) Religious organizations shall be exempt from the provisions of this article to the extent permitted by law.
(c) Nothing contained in this article shall be construed to prohibit promotional activities designed primarily to encourage participation by protected groups (i.e., senior citizen discounts, children’s discounts, and other similar practices), unless otherwise prohibited by law.
(d) It shall not be unlawful to refuse to rent or lease a portion of an occupied dwelling unit to a person as a roomer or boarder when the dwelling is also occupied by the lessor.
(e) It shall not be unlawful for an employer to observe the conditions of a bona fide seniority system or a bona fide employee benefit system such as a retirement, pension, or insurance plan which is not a subterfuge to evade the purposes of this article.
(f) It shall not be unlawful for an owner to limit occupancy of a building or mobile home park to tenants on the basis of age as permitted by federal and state law.
(g) Prohibited discriminatory practice does not include acts based upon a person’s marital status which are reasonably related to a valid statutory purpose.
(h) It shall not be unlawful to limit attendance to classes or programs conducted by an educational institution based upon a valid educational objective or purpose.
(i) It shall not be unlawful for any person to carry out a legally valid affirmative action plan devised as remedial or corrective action in response to past discriminatory practices within the workplace.
(j) Any employee whose employer has in place a formal written grievance procedure or other system to redress alleged improprieties covered by this article shall utilize and exhaust such procedure prior to proceeding under the provisions of this article.
(k) This article shall not apply to public agencies not subject to the jurisdiction of this article.
(Code 1965, § 4974; Code 2002, § 46-35. Ord. No. 91-6)
9.35.060 Discrimination in employment.
(a) Prohibited activity. It shall be unlawful to commit any act of discrimination against an employee or person, or class of persons, in the employment context as prohibited by the statutes and laws set forth in the definition of “discrimination” in section 9.35.040 of this article, including acts by an employer, employment agency, or labor organization.
(b) Bona fide occupational qualifications not prohibited; burden of proof.
(1) Nothing contained in this section shall be deemed to prohibit selection or rejection based upon a bona fide occupational qualification.
(2) In any action brought under this article, if a party asserts that an otherwise unlawful discriminatory practice is justified as a bona fide occupational qualification, that party shall have the burden of proving that:
a. The discrimination is in fact a necessary result of a bona fide occupational qualification; and
b. There exists no less discriminatory means of satisfying the occupational qualification.
(Code 1965, § 4975; Code 2002, § 46-36. Ord. No. 91-6)
9.35.070 Discrimination in housing.
(a) Prohibited activity. It shall be unlawful to commit any act of discrimination against a person or class of persons with regard to any transaction in real property, including but not limited to the purchase, sale, rental, or listing of housing, that constitutes discrimination prohibited by the statutes and laws set forth in the definition of “discrimination” in section 47-34 of this article.
(b) Exceptions. Nothing in this article shall be deemed to permit any rental or occupancy of any dwelling unit or commercial space otherwise prohibited by law.
(Code 1965, § 4976; Code 2002, § 46-37. Ord. No. 91-6)
9.35.080 Discrimination by business establishments.
It shall be unlawful to commit any of the following acts in a discriminatory manner against a person or class of persons:
(1) To deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any business establishment of every kind whatsoever;
(2) To make, print, publish, advertise, or disseminate in any manner, or cause to be made, printed, published, advertised, or disseminated, any notice, statement, or advertisement with respect to any business establishment which indicates that the full enjoyment of such establishment will be unlawfully refused an individual.
(Code 1965, § 4977; Code 2002, § 46-38. Ord. No. 91-6)
9.35.090 Discrimination in provision of city facilities and services.
It shall be unlawful to deny to any person, on a discriminatory basis, full and equal enjoyment of any city facility, service, or program funded or otherwise supported by the city.
(Code 1965, § 4978; Code 2002, § 46-39. Ord. No. 91-6)
9.35.100 Harassment.
(a) For purposes of this section, “harassment” shall be that conduct defined in the definition of “harassment” in section 9.35.040.
(b) Harassment of an applicant or an employee by an employer, the employer’s agents or supervisors is unlawful.
(c) (1) Harassment of an applicant or an employee by an employee other than those listed in subsection (a) is unlawful if the employer or the employer’s agents or supervisors know of such conduct and fail to take immediate and appropriate corrective action. Proof of such knowledge may be direct or circumstantial.
(2) If the employer, the employer’s agents or supervisors did not know but should have known of the harassment, knowledge may be imputed, unless the employer can establish that he took reasonable measures to prevent harassment from occurring. Such measures may include, but are not limited to, affirmatively raising the subject of harassment, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to, and explaining how to, raise the issue of harassment under this article or state or federal law and developing methods to sensitize all concerned.
(d) An employee who has been harassed on the job by a co-employee should inform the employer or other covered entity of the harassment. However, an employee’s failure to inform the employer is not a defense to the harassment.
(e) Harassment outside of the workplace of an individual or group of individuals is unlawful, including harassment in public or at any business establishment.
(Code 1965, § 4979; Code 2002, § 46-40. Ord. No. 91-6)
9.35.110 Complaints, resolution of disputes, and enforcement.
(a) Filing of written complaint.
(1) Any person who believes that he has been subjected to unlawful discrimination or harassment in violation of this article may file a written complaint pursuant to this section.
(2) Complaints shall be filed either in writing, with a designated staff person, to the Human Relations Commission or by the taking of a complaint over the telephone. Complaints received over the telephone by city staff shall be reduced to writing by the staff person on a complaint form prepared and approved by the Human Relations Commission. The complainant shall be provided a copy of the complaint. Complaints shall remain confidential, unless the confidentiality is waived by the complainant or unless disclosure is otherwise required by law.
(b) Processing of housing and employment complaints. If a complaint alleges a violation of section 9.35.060 (employment) or section 9.35.070 (housing), the complaint shall first be referred to the local state or federal agency identified by the city as the appropriate agency to handle the complaint for consultation and advice to the city and complainant.
(c) Dispute resolution process.
(1) Resolution by Human Relations Commission staff person. If the complaint appears to fall within the purview of this article, a staff member assigned to the Human Relations Commission shall attempt to mediate and resolve the complaint on an informal basis. The staff shall disseminate information and cause such investigation to occur as they deem appropriate and shall endeavor to resolve and/or refer the complaint within 15 days of receipt.
(2) Referral to Human Relations Commission Complaint Resolution Committee. If the complaint cannot be resolved by staff, the complaint shall be referred to the Complaint Resolution Committee (the “Committee”). The Committee shall be established pursuant to rules of procedure adopted by the Commission and shall consist of three members of the Commission. An additional member of the Commission shall serve as an alternate. The Commission may establish more than one committee.
a. Review and investigation of complaint by Complaint Resolution Committee. Within 15 days of referral, the Committee shall review the complaint, establish a schedule for mediation of the complaint, and determine whether further investigation is warranted. The Committee may utilize investigators on a compensated or pro bono basis.
b. Action by Committee after investigation is completed.
1. Dismissal of complaint. If the Committee finds that the person charged in the complaint has not engaged in such unlawful practice or conduct, it shall notify the parties to the complaint, in writing, of its determination and the complaint shall be dismissed.
2. Conciliation and persuasion. If the Committee determines that probable cause exists for the allegations made in the complaint, the Committee may endeavor to eliminate the unlawful practice charged in the complaint by means of conciliation and persuasion. The Committee may meet with the parties separately, together, or both, in pursuit of resolution.
3. Referral to outside mediation. The Committee may refer a complaint to a trained mediator on a compensated or pro bono basis. The mediator shall attempt to mediate and resolve the complaint and forward a written synopsis of his efforts, including findings, to the Committee. If mediation resolves the complaint, the Committee shall close the complaint as being resolved.
4. Complaint not resolved by outside mediator. If the outside mediator is unable to resolve the complaint, the mediator shall prepare written findings and refer the results of the mediation to the Committee. The Committee may continue to attempt to resolve the complaint.
(3) Unresolved complaints. If there has been no resolution of the complaint, either by staff, by the Complaint Resolution Committee, or by the efforts of the outside mediator, and 60 days have elapsed since the initial filing of the complaint, the Complaint Resolution Committee may do any of the following:
a. Refer the complaint to the appropriate federal or state agency for resolution;
b. Close the complaint as being unresolved;
c. If the parties do not consent to review by the Human Relations Commission, the Committee may refer the complaint to the City Attorney and request a determination as to whether legal action or referral to a state or federal agency is appropriate to cause the respondent to cease and desist the discriminatory practice or harassment.
d. If the parties consent in writing to the referral, the Committee may refer the complaint and the results of its investigation and findings to the Commission for decision and recommendation pursuant to subsection (4) below.
(4) Determination of complaint by Human Relations Commission. In the event the complaint is referred to the Commission, the Commission shall hold a public meeting to consider the matter. The Commission shall endeavor to render its decision on the matter raised in the complaint within 180 days of the original filing of the complaint. Following its review of the complaint and investigation, the Commission shall render a decision, including written findings of fact and a recommendation. The decision, findings, and recommendation shall be mailed to the parties within 30 days of the decision.
a. Human Relations Commission action. If there has been no resolution of the complaint, the Commission may take any action set forth in subsection (c)(3) of this section.
b. Reconsideration of decision. The decision of the Commission shall be final, unless a party to the complaint files a request for reconsideration. The request shall be made in writing within seven days following the receipt by the requesting party of the Commission’s decision. The Commission shall notify the parties, in writing, whether or not it will reconsider its decision. If the Commission grants reconsideration, the notice shall state the time and date that the matter will be reconsidered.
(Code 1965, § 4980; Code 2002, § 46-41. Ord. No. 91-6)
9.35.120 Rules of procedure of Human Relations Commission.
The Commission shall, by resolution, adopt procedures to carry out the purposes of this article. The resolution shall not be effective until approved by the City Council. Housekeeping or minor administrative changes to the approved resolution may be accomplished by motion of the Commission and need not be approved by the City Council; however, the City Council reserves the right to review any amendment to the rules of procedure.
(Code 1965, § 4981; Code 2002, § 46-42. Ord. No. 91-6)
9.35.130 Confidentiality of proceedings.
All proceedings, complaints, and conferences with Commission staff and the Committee are considered settlement or mediation efforts within the meaning of state law, including Evidence Code § 1152 et seq., and shall be exempt from disclosure to the extent permitted by law. Proceedings before the Commission are not confidential.
(Code 1965, § 4982; Code 2002, § 46-43. Ord. No. 91-6)
9.35.140 Retaliation prohibited.
No person shall retaliate against any other person for seeking to enforce the provisions of this article. Any such retaliation shall be deemed an act of discrimination or harassment under this article.
(Code 1965, § 4983; Code 2002, § 46-44. Ord. No. 91-6)
9.35.150 Other remedies.
(a) Private right of action. Any person or class of persons whose rights are violated pursuant to this article may, to the extent allowed by law, bring a civil action against the person or persons engaging in such violation. Upon a finding of liability, the court shall award actual damages, but not less than $500.00. The prevailing party is entitled to reasonable costs and reasonable attorney’s fees. No punitive or exemplary damages may be awarded pursuant to this article.
(b) Public enforcement.
(1) The city may enforce the provisions of this article pursuant to section 1.05.210 of this Code. In the event the city enforces this article pursuant to section 1.05.210 of this Code, the city, as prevailing party, is entitled to recover reasonable costs, including court costs, investigation costs, and/or mediation costs, and reasonable attorney’s fees.
(2) If the court finds against the defendant, the court shall assess a civil penalty against the defendant and payable to the city in the amount of $500.00 and shall also award actual damages, but not less than $500.00, to the person or class of persons whose rights were violated pursuant to this article.
(c) Injunctive relief. Any person who suffers from an act in violation of any provision of this article may seek a temporary restraining order, preliminary or permanent injunction issued by a court of competent jurisdiction to preserve the status quo or enjoin any future violations of the unlawful practice. Such action may be brought by an aggrieved party or by the city either in conjunction with an action for damages, as provided in subsections (a) and (b), or as the sole remedy.
(d) Exhaustion of administrative remedy not required. A complaint to the Commission is not a prerequisite to the filing of an administrative complaint or a civil action in a state or federal court.
(e) Effect of other actions on complaint resolution process. In the event a civil action is filed pursuant to subsection (a), (b), or (c), or a complaint is filed with a federal or state agency, the complaint resolution process under this article shall stop and the matter will be considered closed. In no event shall a complaint be processed for a matter where a court or administrative agency has rendered a final decision.
(f) Emergency relief. If, at any time after a complaint has been filed, city staff, the Committee, or the Human Relations Commission determines that appropriate civil action to preserve the status quo or to prevent irreparable harm appears advisable, the matter may be referred to the City Attorney for appropriate legal action or referral to a state or federal agency. The parties shall be notified of the referral to the City Attorney.
(Code 1965, § 4984; Code 2002, § 46-45. Ord. No. 91-6)
9.35.160 Time limit for filing civil actions.
Civil actions under this article must be filed within one year from the time the complainant alleges that the unlawful practice or conduct occurred.
(Code 1965, § 4985; Code 2002, § 46-46. Ord. No. 91-6)
9.35.170 Criminal liability for violations.
Notwithstanding any provision of this Code to the contrary, a violation of any provision of this article is neither a crime nor an infraction. This section is not to be construed to relieve a person of any criminal liability under other provisions of law.
(Code 1965, § 4986; Code 2002, § 46-47. Ord. No. 91-6)
9.35.180 Posting of notices.
Every employer, labor organization, employment agency, and business establishment shall post a notice that discrimination is prohibited by this article. The Human Relations Commission shall develop the contents of said notice so as to effectuate the purposes of this article.
(Code 1965, § 4987; Code 2002, § 46-48. Ord. No. 91-6)
9.35.190 Severability; conformance with state and federal laws.
This article was developed cognizant of the existence of state and federal laws that regulate discrimination and harassment. It is the intent of the city that this law complement existing law and not conflict with same. If any section, subsection, sentence, clause, phrase, or portion of this article is held to be invalid or unconstitutional for any reason by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the article. The City Council hereby declares that it would have adopted this article and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional.
(Code 1965, § 4988; Code 2002, § 46-49. Ord. No. 91-6)