Scottsdale adopts anti-discrimination ordinance

The Scottsdale City Council tonight voted unanimously to adopt an anti-discrimination ordinance, which prohibits discrimination based on actual or perceived race, color, religion, sex, national origin, age, sexual orientation, gender identity, or disability.

The ordinance represents a public commitment to the concept of fairness and equity in the Scottsdale community, and also includes specific actions for compliance. The ordinance provides a mechanism for responding to complaints and violators are subject to civil prosecution.

The ordinance goes into effect in 30 days (May 20, 2021)

Read the ordinance in the April 20 City Council Action Report here.

The questions and answers below explain specific facets of the ordinance and address questions received by the city.

Why is Scottsdale adding sexual orientation and gender identity to its non-discrimination laws?

Scottsdale is creating a new anti-discrimination ordinance that prohibits discrimination in public accommodations, employment and housing on the basis of race, color, religion, sex, national origin, age, sexual orientation, gender identify or disability, it is not adding to an existing anti-discrimination ordinance.

Is there data that shows how many people have been discriminated against in Scottsdale?

There are no official records that capture the count or frequency of discrimination, as it is currently not illegal in Scottsdale.

However, the city has regularly received reports of discrimination, harassment, or retaliation on the basis of sexual orientation or gender identity (there are others based on race/ethnicity, as well), including:

• December 2018 - assault and harassment based on sexual orientation at a bar in Scottsdale
• March 2019 -reports or discriminatory comments on the basis of sex, sexual orientation and race/ethnicity at a Scottsdale event
• Fall 2019 - report of discrimination on the basis of gender identity at a school in Scottsdale
• February 2020 - report of harassment at a bar in Scottsdale based on a perception of sexual orientation
• August 2020 - report of harassment on the basis of sexual orientation at a restaurant in Scottsdale

Why is age defined as only those over age 40?

This is consistent with state and federal age discrimination laws which cover those aged 40 and over.

I run a family-owned business - can I still hire a family member or friend of the family?

Yes. A family-owned business may hire a family member or a friend of the family - provided there is no competitive hiring process, i.e. the job opening is not advertised to the public.

I'm concerned with how this ordinance will infringe on my religious rights. I have personal religious beliefs when it comes to who I want to hire, provide services to, or lease to. How will this impact me as a business owner?

The ordinance will be interpreted in a manner consistent with free exercise of religion, as well as other First Amendment freedoms. Religion is also a protected class throughout - so a person cannot be discriminated against based on their religion. Similar to a family-owned business, an individual may hire someone of their own religion, or limit real estate transactions to persons of their religion, provided there is no competitive process, i.e. the job opening is not advertised to the public, or the real estate listing is not advertised to the public.

How are religious organizations impacted by the ordinance?

The ordinance will be interpreted in a manner consistent with free exercise of religion, as well as other First Amendment freedoms. Religion is also a protected class throughout - so a person cannot be discriminated against based on their religion. In addition, it would not be considered discrimination for religious organizations to give preference in hiring someone of their religion to perform religious work, or to limit real estate transactions to persons of their religion. Religious organizations, when providing services to the public, may not discriminate on the basis of a protected class. The ordinance will also be interpreted consistent with the Arizona Constitution and Arizona's Religious Freedom Restoration Act, which provides religious freedom protections.

Are there any issues pertaining to restrooms/locker rooms if this ordinance is enacted?

The ordinance does not address the issue of restrooms and locker rooms. Nothing in the ordinance would prohibit a business from posting such facilities for men only, or for women only, or having gender neutral facilities. Nothing about this ordinance changes the fact that it is illegal to enter a restroom or facility to harm or harass people or invade their privacy. People in Scottsdale currently must choose which restroom or similar facility to use and one would assume they choose the facility associated with the gender with which they identify. Nothing in the ordinance would change that. That being said, if a business or employer took it upon themselves to post discriminatory signage or attempt to harm or harass people or invade their privacy to make determinations about who was sufficiently male or female to use a given restroom or facility, it is possible that they would run afoul of existing laws, or the ordinance.

Will the ordinance regulate or impact athletic programs, e.g. men competing on women's sports teams or in leagues?

There is nothing in the draft ordinance that would prohibit gender-specific teams in sports leagues.

Will this ordinance be applicable to school facilities and programs?

State law prohibits cities from regulating public and charter schools. Private schools would only be subject to the ordinance's provisions regarding employment and public accommodation.

I rent a room in my home - can I still choose who I want to live with?

Yes. The ordinance does not apply to the selection of persons to reside within a dwelling or portion of a dwelling occupied by the person making the selection.

Are private social clubs covered by the ordinance?

No. Membership decisions of private social clubs are outside the scope of this ordinance. Under existing federal law and case law, discrimination based on sex is permitted to some extent, such as allowing private social clubs to limit their membership to men or women. From a housing standpoint, private social clubs can limit their lodgings to their members.

What about sex-specific jobs?

Under current federal civil rights law, it is generally unlawful to designate a job as sex-specific. In addition, discrimination based on gender identity in employment is already unlawful under federal law for employers with 15 or more employees. In the rare case that a job can be lawfully designated as sex-specific, an employer could not discriminate solely on the basis of their perception of a person's gender identity. In addition, as stated in Sec. 15-16(B), nothing shall be interpreted to require a less qualified person to be preferred over a better qualified person because of their membership in a protected class.

Are adoption agencies impacted by the ordinance?

There is nothing in the ordinance that would apply to adoption placement.

Are businesses open to the public required to serve all customers?

Non-Religious businesses that are open to the public should be open to everyone on the same terms. If a business chooses to provide goods and services to the public, they should be sold to everyone equally.

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