Could Innocent Employers Go to Jail? Sex, Gender Identity and Phoenix’s New Criminal Ordinance

by Snell & Wilmer
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Opponents of newly approved amendments to the city of Phoenix’s Human Relations Ordinance (the Ordinance) had worried that the amendments could result in criminal penalties for employers and others who might bar transgender people from using the restrooms designated for the gender with which they identify.

Now that the amendments have been approved by the Phoenix City Council, businesses may wonder about the appropriate approach to such restroom issues and the appropriate approach to accommodations for customers or employees with diverse gender identities.

The amendments add three additional categories that are protected from discrimination: “sexual orientation,” “gender identity or expression” and “disability.” The amendments apply to public and private employment, public accommodations, housing, city construction contracts, and city supplier and lessee contracts.

The Ordinance is not merely aspirational. Phoenix’s Equal Opportunity Department (the Department) takes written complaints and may initiate action on its own in response to violations. The Department may undertake an investigation, has subpoena power, may resolve the issue by conciliation agreement or may refer it to any enforcement body with jurisdiction. If the violation is not resolved by conciliation agreement or if a respondent violates a conciliation agreement, the Department may refer the case to the city attorney for criminal prosecution.

The criminal penalty for conviction of each violation of the Ordinance is a Class 1 misdemeanor, carrying with it the possible sentence of up to six months in jail.

The amendments are broad, including definitions of “disability,” “gender,” “gender identity or expression” and revised definitions of “sex” and “sexual orientation.” For example, “gender identity or expression” means “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.”

Race, color, religion, sex, national origin, age, genetic information and marital status were already covered as protected categories. Disability was already covered in the housing and contracts provisions of the Ordinance, but was added to the employment and public accommodations sections. Religious organizations, small private landlords, senior housing, private clubs and others previously exempted from the Ordinance continue to be exempted from its application.

Phoenix joined more than 165 other cities and counties, including Tucson, that prohibit employment discrimination on the basis of gender identity by all public and private employers within those jurisdictions.

Employers doing business within the city of Phoenix, and all entities covered by the amended Ordinance, may want to seek knowledgeable counsel familiar with its language to determine its application to and impact on their business.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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