Lincoln voters will soon find out whether the Nebraska Family Alliance succeeded in forcing a city wide vote on striking sexual orientation and gender identity as protected classes within Lincoln’s municipal human rights ordinance. Their petition drive is in response to the Lincoln City Council finally voting to include sexual orientation and gender identity within the ordinance after first broaching the subject nearly a decade ago.
Supporters of the expanding Lincoln’s municipal human rights ordinance to include sexual orientation and gender identity describe the expansion as the fairness ordinance.
Arguments made by the organizers of petition to repeal the fairness ordinance are misguided. To be charitable, I assert that one contributing factor to the misapprehension is probably misunderstanding the substantive details of civil rights laws and how Lincoln enforces its human rights ordinance.
Here what I think are the misconceptions and misunderstandings about the expanded protection in Lincoln’s human rights ordinance when it comes to workplace law.
The new ordinance is a radical expansion of the law. Trump-appointee, Associate Justice Neal Gorsuch wrote the opinion in 2019 that held discrimination based on sexual orientation or gender identity constituted unlawful sex discrimination in the workplace. That ruling applies to employees with 15 or more employees. The expansion of Lincoln’s human rights ordinance now means the employers with between 4-14 employees can not discriminate on the basis of sexual orientation or gender identity.
The ordinance discriminates against Christians – Civil rights laws protect religious discrimination on the job. In fact, religious exemptions are one way employees can legally be exempted from vaccine mandates. Further, evangelical Christians have successfully sued non-Christian employers for religious discrimination.
The ordinance discriminates against conservatives – The 1st Amendment doesn’t apply to private employers. Secondly, political ideology or belief isn’t a class protected by civil rights laws. So private employers have some ability to discriminate based on political belief in Nebraska.
The civil rights ordinance will be enforced by extra-legal means – The Lincoln Commission on Human Rights (LCHR) enforces Lincoln’s municipal ordinance on employment, housing and public accommodation. Opponents of expanding anti-discrimination protections to the LGBT community portray the LCHR as some sort of over-woke star chamber looking to cancel conservatives and evangelical Christians for their beliefs. I served on the LCHR from March 2014 to December 2020. I can tell you that isn’t true.
According to the last annual report from the LCHR, the LCHR only found reasonable cause of discrimination in 3 of 44 cases in the last year. A reasonable cause finding doesn’t mean monetary penalties either. In order for that to happen, there is either needs to be a public hearing which amounts to a trial or a claimant can go to court.
I can tell you from personal experience that civil courts give little to no deference about what an agency like the LCHR or its commissioners believe about a case. But even if parties go through the public hearing process, appellate courts can and sometimes do overturn decisions made by the LCHR.
In fact, the only way employees can sue their employer for discrimination if they work for an employee of 4-14 employees is to file with the LCHR. If they don’t file within 180 days, the employee can’t bring a claim. I believe these requirements to file administrative charges before suing actually protects employers.
However arguments made by opponents of legal protection of expanding civil rights based on gender identity under city law have some a sympathetic ear with an important audience – at least two current United States Supreme Court justices.
Why courts may agree with critics of Lincoln’s amended human rights ordinance
At least two Supreme Court justices, Neil Gorsuch and Clarence Thomas, believe that ordinances that prohibit public accommodation discrimination based on sexual orientation violate freedom of religion.
In that case, Masterpiece Cake Shop v. Colorado Commission on Human Rights, a majority of the court overturned a finding against a business that refused to decorate a cake for a gay wedding because of comments made by state human right’s commissioners during proceedings to sanction Masterpiece.
I know when I served on the LCHR, commission staff used Masterpiece to cautions commissioners about how commissioners discussed cases during reasonable cause determinations. But I believe Masterpiece and its aftermath just re-enforces how courts freely disregard and second guess determinations made by human rights agencies such as the Lincoln Commission on Human Rights.
Also critics of civil rights laws have long argued that these laws violate the first amendment. Further religious employers have fairly broad protections against civil rights laws even in classes that wouldn’t directly seem to implicate religious practices such as disability discrimination.