Questions to ask when creating an anti-discrimination law
After the fallout from Indiana’s controversial Religious Freedom Restoration Act, municipalities all over the state have considered whether to create anti-discrimination ordinances.
Protections against discrimination based on race or religion already exist, whether in state law or the U.S. Constitution, so the next group to be protected would be gay, lesbian, bisexual and transgender people. LGBT groups were angry about RFRA because they believe it limited their rights in favor of businesses and institutions that could claim that serving LGBT people conflicts with their religious principles.
Fifteen Indiana communities have anti-discrimination laws on the books. Some already existed, but five created new protections, including Muncie, Hammond, Whitestown, Zionsville and Columbus. Mayors of Martinsville and Goshen used executive orders.
And now Carmel leaders are considering their own ordinance and it’s receiving attention statewide.
The process has been held up for more than a month as some city councilors say they need to have some questions answered before passing a law. Three councilors in support of the ordinance – Rick Sharp, Sue Finkam and Ron Carter – expressed disappointment about a lack of progress towards achieving a workable bill that could be voted on. Those councilors felt comfortable with current language in the proposed law to suggest a vote on Sept. 21 but were outvoted by the four other councilors who wanted more time. A committee meeting to fine-tune language was canceled and not rescheduled. The next available committee meeting was dominated by a public comment section – unusual for a committee meeting – that took more than an hour.
I asked those who suggested delaying a vote on the ordinance, “Is this ordinance a top priority for you?” and I received mixed answers. Basically, the overall sentiment I heard is if Carmel doesn’t have a problem with discrimination then why rush this? They said that Carmel hasn’t had an anti-discrimination law on the books for “how many?” years and things have been going fine. One councilor said the budget process, which begins this week with budget workshops, will take precedence for the foreseeable future.
Those in support of the law say they don’t want to rush the process, but they feel more than a month without any progress is disappointing. Some say that every delay to the process makes it appear to the media that Carmel is dragging its feet on an important issue, which isn’t good for perception in their eyes.
So what are the questions that need to be asked? Let’s go through them in order to see what needs to be done to get a vote on this piece of legislation.
Should we outlaw discrimination against LGBT people?
Some have argued that you have the right as a business owner to discriminate against people and the free market will sort it out. If you don’t want to serve gay people because of your religious beliefs, is that OK? Should that be allowed? Some say that LGBT groups should be given protected status. If you agree with this, it appears that most of the other questions won’t apply. There’s no point in debating how to write this law if you don’t think it should be created in the first place.
Is legislation the best way to address discrimination?
This kind of goes along with the first question. Basically, some might feel that discrimination is wrong and should be eliminated but don’t feel the government can or should solve this problem. City Councilor Eric Seidensticker has told me he supports this sentiment. He feels uncomfortable seeing government wade into these waters. He suggests an alternative: a resolution that declares that Carmel is an accepting community that doesn’t discriminate. This would have no force of law but would “send a message” to business leaders that Carmel is a welcoming place to do business. Others disagree with this suggestion, saying it’s pointless and doesn’t protect anyone in any way. Sharp said he thinks it’s time for stronger action than just a resolution because of the damage done by RFRA. He also added that even if discrimination isn’t a frequent problem, that doesn’t make a difference because one case of discrimination is one case too many.
Who should be protected?
Some advocates wanted very specific definitions under the law. They like to point out that Facebook has 58 different options for gender identity. Do all these need to be listed and defined? Carmel Mayor Jim Brainard said he doesn’t care what Facebook says, the law lists only two genders and he feels that’s an extreme argument and a distraction. Sharp said that some definitions could be added but said that generally when a law is written you go with the most common definition of the term if there’s a legal challenge. You can decide that the most common definition using the dictionary or Wikipedia or other laws or legal documents. But that only needs to be answered if there is a legal challenge and massive document isn’t needed in Sharp’s view.
What constitutes discrimination?
Under the ordinance, it spells out the major forms of discrimination as housing, employment and business services. This means you wouldn’t be evicted by a landlord for being gay or fired from a job for being gay. You can walk into a restaurant or dry cleaners and receive service just like anyone else no matter who you are. Some wanted amendments included to exclude some business services, such as the idea of baking a cake for a gay wedding. This is the argument that’s brought up most often because religious groups argue that providing any business services for a gay wedding basically means you are supporting gay marriage, which could conflict with your religious beliefs. Councilor Kevin “Woody” Rider said after the introduction of the ordinance that the amendments made him feel better about the law but since then Brainard – along with Sharp, Carter and Finkam – said they don’t support the amendments because it’s a way to legalize discrimination. The amendments said a business owner wouldn’t have to create custom products that were considered vulgar or provide off-premises work. The term “vulgar” needed definition some said. It could apply to an example such as a Jewish baker being asked to bake a cake with a swastika on it but it also could be interpreted into saying that putting two grooms on a cake instead of a groom and bride is vulgar. Rider wanted to emphasize at the Sept. 21 meeting that these aren’t “his” amendments as one person had suggested. He said the mayor wrote the amendments. Carter said that the mayor wrote the amendments at the request of Rider and other councilors and the mayor didn’t necessarily support the amendments but that’s part of the process. Sharp said he agrees with amendments describing what constitutes religious organizations but disagrees with the off-site premises and custom work amendments because he believes it creates a loophole and a way for people to actually believe discrimination is legalized.
Who makes the decision and decides the penalties?
Some municipalities like Zionsville have a board set up to hear any complaints about discrimination. Under Carmel’s ordinance, such decisions would be made by the City Attorney’s Office. Of course, Zionsville doesn’t have a city attorney so that wasn’t an option for that city. Carmel does have a board called the Mayor’s Advisory Commission on Human Relations. Some have suggested that this board could handle these complaints, but Brainard feels most comfortable letting a legal expert examine the issues. Those that distrust the government have said they don’t feel comfortable giving the city government the power to fine businesses if there are complaints of discrimination. City Councilor Luci Snyder expressed concerns that fines up to $500 a day can add up quickly and destroy a small business owner. She wondered about the appeal process or any repayment for false claims. Supporters of the ordinance say the punitive fines have been exaggerated and the authorities have leeway to assess smaller fines or handle matters in different ways. In essence, the City Attorney’s Office will use its discretion the same way a police officer or prosecutor uses their discretion to decide which complaints are valid and worth exploration. Sharp said he often has concerns about using the City Attorney’s Office to decide matters – such as interpreting a contract written by the city attorney – but in this case he has no problem. He said it’s just like a zoning issue that is often brought to the city and settled calmly without a massive fight.
What are the possible liability issues?
Brainard has stated that the city can’t be sued under this ordinance. But some question whether that’s true because anyone can try to sue anyone for anything. Would appeals and dragged out cases add to the work load of the City Attorney’s Office, meaning higher budget costs? What about liability for businesses and their insurance costs? Businesses have to often worry about someone suing them if a customer is injured or harmed on the property, but do they have to worry about being fined heavily for an unjustified claim of discrimination? Could an employee who was fired for being late claim that it was really because of sexual orientation? Brainard said the City Attorney’s Office would investigate and throw out frivolous claims. He also points out that many major cities like Indianapolis have had these protections on the books for years and there isn’t a flood of frivolous claims or businesses being fined unfairly. Sharp doesn’t agree with the idea that businesses will be put at risk because there are already protections for businesses against frivolous claims. He points to the example of someone faking a fall in a grocery store and then trying to sue for money. Insurance companies that represent the grocery store have attorneys that investigating and prove that claims are false so they don’t pay up needlessly. Those who make false statements are often sued for court costs if that’s deemed necessary. Sharp said there are many means of recourse for businesses who are accused of discrimination, both inside and outside the court system. Furthermore, Sharp feels that Carmel won’t suddenly become the city for a “test case” to create a national controversial over LGBT protections.
Basically, in the end, I’m hearing from multiple city councilors that they feel the vote is probably going to be 4-3 in favor of passing the ordinance with Councilor Carol Schleif as the swing vote. Seidensticker is not likely to support any form of the ordinance and Snyder and Rider both said they think the law needs work. Although some councilors in support strongly suggested that Snyder and Rider might just be saying that to stall and delay and in the end won’t support any form of the law. A committee meeting is scheduled for Oct. 1 and the final vote is anticipated for Oct. 5.