28 August 2019

By:      Collin H. Nyeholt, attorney at law

            (517) 522-2550

           collin@caseydconklin.com

 

 

Grand Rapids Human Rights Ordinance

On August 27, 2019 the City of Grand Rapids adopted its Human Rights Ordinance.[1]  The Ordinance regulates the practices of employers, businesses, and landlords within the City of Grand Rapids, and provides for both civil and criminal remedies for people that suffer discrimination.  The Grand Rapids Ordinance is exciting because it protects people who, historically, have not been protected and it allows them to protect their rights in ways they could not before.

 

Brief Primer on Discrimination Law:  When we talk about anti-discrimination laws, we think about who the law protects, and who it covers.  You’ll usually see a list of “protected statuses” which is a list of the things a given statute prohibits discrimination based upon (eg race, sex, national origin).  And, you’ll see some definition of what persona and practices it applies to (eg employers, housing officials, businesses.)  For instance, the federal Title VII says that an employer (defined as a business involved in interstate commerce that employs 15 or more people) can’t discriminate because of race, color, religion, sex and national origin.  Michigan’s Elliott-Larsen Civil Rights Act says that an employer (defined as a business operating in Michigan that employs one or more people) can’t discriminate based on religion, race, color, national origin, sex, height, weight, familial status, or marital status.  So, if you work for a five employee shop and they fire you because of your race, you may have a claim under the ELCRA but not under Title VII.  Conversely, if you work for a 16 employee company and they fire you for being overweight, you would have a claim under the ELCRA but not under Title VII.  The question in any civil rights discrimination case is (1) who does it cover (2) what does it protect.

The new Ordinance is extremely notable because it is exceptionally broad in both who it covers, and who it protects.  It opens up avenues for people to protect their rights, who historically may not have been able to otherwise.  

 

The Ordinance Covers, Basically, Anyone Working, Living, or Doing Business in the City of Grand Rapids.  The Ordinance applies to “employers” within the City of Grand Rapids which includes “any person compensating one or more individuals for the performance of work in a lawful business or enterprise.”  Basically, that’s anyone who pays anyone else to do work within the City.  It also covers landlords and realtors because it prohibits discrimination in “the opportunity to purchase, lease, rent, sell, use, convey, and finance housing[.]”  And, it prevents discrimination in “public accommodation” and “public services practices.”  The definition is broad enough to cover pretty well any business operating in the City of Grand Rapids.   

So, the new Ordinance is very broad.  It protects, basically, anyone working, living, or doing business within the City of Grand Rapids.  It also has a very broad scope of who it protects.

 

The Ordinance Protects against Gender Identity and Expression Discrimination:  As I have discussed previously,[2] the rights against discrimination based upon sexual orientation and gender identity are somewhat uncertain in the civil rights landscape.  Even after recent Supreme Court decisions invalidating the Defense Of Marriage Act and upholding the right of homosexual individuals to marry, there is still considerable ambiguity as to whether the civil rights statutes that protect against discrimination protect against discrimination based on sexual orientation and gender identity.[3] 

There is no more ambiguity in the City of Grand Rapids:  the new City ordinance unequivocally protects against discrimination based on “gender identity or expression” and “sexual orientation.”  Meaning, if you work for an employer located in the City of Grand Rapids, and he fires you because you are gay, you can sue.  If you live in the City and you get evicted because you are a transsexual, you have recourse.  A baker that refuses to make a cake for a gay marriage? That could be viewed as a place of public accommodation discriminating based on marital status, which would be a violation of the statute.  (Ignoring, of course, the constitutional challenges to such an ordinance as infringing on religious freedom). 

Persons within the City of Grand Rapids who suffer discrimination because of their sexual orientation or gender identity by their landlord, their bosses, or even a shop up the street now have a significant tool to combat this abuse.

 

The Ordinance Protects against Discrimination Based on “Source of Lawful Income:”  The Ordinance also protects against discrimination based on “source of lawful income.”  This is a fairly novel protected status.  This provision seems to mirror a New York City ordinance that was designed to prevent against landlords from discriminating against renting to welfare recipients or refusing to accept Section 8 vouchers.  From the language of the Ordinance, it seems that it could extend more broadly to people that refuse to rent to people based on their vocation.  For instance, remember that scene in Leaving Law Vegas where Elizabeth Shoe gets evicted because her Puritanical landlords don’t like that she’s a prostitute?  Conceivably, that would be discrimination based on lawful income, assuming her methods of prostitution were in conformance with Nevada law.  A lunch counter that refuses to serve lawyers or police officers, conceivably, could also run afoul of this statute.

 

The Ordinance Prohibits Racially Biased Crime Reporting.  We’ve all seen the Youtube videos.  An African American family is out happily enjoying a barbeque.  Suddenly, the racist from up the street is up in their grill, calling the police, claiming she thinks they’re “up to no good.”  Guess what?  This ordinance explicitly targets that type of behavior.  The Ordinance provides that “no person shall knowingly or recklessly report to a City police officer” or other similar personnel that an individual who is an “actual or perceived member of a protected class” has “committed, or may commit, a crime” if that report is based in whole or in part on the individual’s membership in a protected class.  The lady who calls the police on the barbeque would be in violation of the ordinance. 

Because the Ordinance prevents reporting based on protected status it would also protect against nuisance calls because of a person’s gender identity, sexual orientation, or source of income.  A homophobic shop owner that calls the police on a gay couple that come in to browse their store?  That’s a police report based on sexual orientation, which is a violation.

 

The Ordinance Prohibits Retaliation for Reporting a Violation of the Ordinance.  In addition to everything else, the Ordinance also prohibits a person to “coerce, threaten or retaliate against an individual for making a complaint or assisting in the investigation regarding a violation or alleged violation” of the Ordinance.  A person who retaliates against someone for reporting a violation of the Ordinance is just as liable as someone who actually violates the Ordinance.   If interpretations of the Ordinance follow the similar decisions from Title VII’s anti-retaliation provisions, a person could win on a claim that they were unlawfully retaliated against, even if the original complaint loses.[4]

 

Enforcement.  The Ordinance has significant penalties.  A victim of a violation of the statute may proceed through a private complaint process whereby the City Attorney may enforce civil and criminal penalties for violations that are reported to it.  Or, a victim may just file a private lawsuit where they may recover “injunctive relief, damages, or both” including attorney’s fees from the action.  The Ordinance definitely has teeth.

If you believe that you have suffered discrimination in the City of Grand Rapids, you should consult with a qualified practitioner in this area without delay.

 

 

 

About the Author

Collin Nyeholt is an Associate Attorney at the Law Offices of Casey D. Conklin.  He is licensed in the State of Michigan and is an eight-year practitioner of civil rights and employment discrimination law.  He can be reached with questions at (517) 522-2550 or collin@caseydconklin.com

 

 

[1] Title IX of the Code of the City of Grand Rapids, Chapter 175, Articles 1-5, Sections 9.935-9.951 entitled “Human Rights”

[2] Nyeholt, Understanding LBGTQ Rights in the Michigan Workplace, available at:  http://www.womenscenterofgreaterlansing.org/understanding-lbgtq-rights-in-the-michigan-workplace/?fbclid=IwAR1voRuqkeejJ9Jw0ul5UErKm6mJDBawx05zsjYrXeIPD2cLThVbjDdwMAY.

[3] Id.

[4] Mys v. Michigan Dep’t of State Police, 886 F.3d 591 (6th Cir. 2018) (Plaintiff won on claim for Title VII retaliation, despite fact that underlying claim of Title VII discrimination lost.)

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