Berkeley Municipal Code Ch. 13.28 Discrimination on the Basis of Sexual Orientation

It is the policy of the City to eliminate discrimination based on sexual orientation within the City. It is the intent of the City Council to make discrimination based on sexual orientation unlawful in all circumstances in which discrimination based on race, color, religion, sex or national origin are unlawful under state and federal law. (Ord. 5106-NS § 1 (part), 1978)

A. Findings. After public hearings and consideration of testimony and documentary evidence, the council finds that discrimination based on sexual orientation exists in the City. The council finds further that such discrimination poses a substantial threat to the health, safety and general welfare of this community. Such discrimination foments strife and unrest, and it deprives the City of the fullest utilization of its capacities for development and advancement. The council finds further that existing state and federal restraints on arbitrary discrimination are not adequate to meet the particular problems of discrimination based on sexual orientation in this community, so that it is necessary and proper to enact local regulations adapted to the special circumstances which exist in this City.

B. Definitions. As used in this chapter, the following words and phrases shall have the meanings ascribed to them in this subsection:

1. "Business establishment" means any entity, however organized, which furnishes goods or services to the general public. An otherwise qualifying establishment which has membership requirements is considered to furnish services to the general public if its membership requirements: (a) consist only of payment of fees; (b) consist of requirements under which a substantial portion of the residents of this City could qualify; or (c) consist of an otherwise unlawful business practice.

2. "Individual" means the same as the term "person." Wherever this chapter refers to the sexual orientation of any individual, and the individual is a group, the phrase shall mean the sexual orientation of any member of the group.

3. "Person" means any natural person, firm, corporation, partnership or other organization, association or group of persons however organized.

4. "Sexual orientation" means an individual’s actual or supposed sexual preference. Discrimination on the basis of sexual orientation shall include both discrimination based on actual knowledge of sexual orientation and discrimination based on supposition or assumption of sexual orientation. (Ord. 5106-NS § 1 (part), 1978)

A. Unlawful Employment Practices.

1. Employers--Discrimination. It shall be an unlawful employment practice for an employer to fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment on the basis of such individual’s sexual orientation.

2. Employers--Segregation. It shall be an unlawful employment practice for an employer to limit, segregate or classify employees or applicants for employment in any manner which would deprive or tend to deprive any individual of employment opportunities, or adversely affect their employment status on the basis of such individual’s sexual orientation.

3. Employment Agencies. It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment any individual, or otherwise to discriminate against any individual on the basis of such individual’s sexual orientation.

4. Labor Organizations. It shall be an unlawful employment practice for a labor organization to fail or refuse to include in its membership or to otherwise discriminate against any individual; or to limit, segregate or classify its membership; or to classify or fail or refuse to refer for employment any individual in any way which would deprive or tend to deprive such individual of employment opportunities, or otherwise adversely affect their status as an employee or as an applicant for employment on the basis of such individual’s sexual orientation.

5. Job Training. It shall be an unlawful employment practice for an employer, an employment agency or a labor organization to discriminate against any individual in admission to, or employment in, any program established to provide apprenticeship or other training or retraining, including any on-the-job training program on the basis of such individual’s sexual orientation.

6. Advertising. It shall be an unlawful employment practice for an employer, employment agency or a labor organization to print, publish, advertise or disseminate in any way, any notice or advertisement with respect to employment, membership in, or any classification or referral for employment or training by any such organization, which indicates an unlawful discriminatory practice.

B. Subterfuge. It shall be unlawful to do any of the acts mentioned in subsections (A)(1) through (A)(6) of this section for any reason that would not have been asserted but for the sexual orientation of any individual.

C. Bona Fide Occupational Qualification not Prohibited--Affirmative Defense.

1. Bona Fide Occupational Qualification. Nothing contained in this section shall be deemed to prohibit selection or rejection based upon a bona fide occupational qualification.

2. Affirmative Defense. In any action brought under Section 13.28.090 of this chapter (enforcement), if a party asserts that an otherwise unlawful discriminatory practice is justified as a bona fide occupational qualification, that party shall have the burden of proving: (a) that the discrimination is in fact a necessary result of a bona fide occupational qualification; and (b) that there exists no less discriminatory means of satisfying the occupational qualification.

D. Exceptions. It shall not be unlawful discriminatory practice for an employer to observe the conditions of a bona fide seniority system or a bona fide employee benefit system, provided such systems or plans are not a subterfuge to evade the purposes of this chapter; provided, further, that no such system shall provide an excuse for failure to hire any individual because of sexual orientation.

E. Notices.

1. Requirements. Every employer with fifteen or more employees, every labor organization with fifteen or more members, and every employment agency shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment and members are customarily posted, the following notice: "Discrimination on the basis of sexual orientation is prohibited by law. Berkeley Municipal Code, Sections 13.28.010-13.28.100."

2. Alternate Compliance. Notwithstanding the above, the provisions of this subsection may be complied with by adding the words "sexual orientation" to all notices required by federal or state law, and indicating on the notice that discrimination on the basis of sexual orientation is prohibited by the Berkeley Municipal Code, Sections 13.28.010 through 13.28.100.

3. Penalty for Noncompliance. Wilful violations of this subsection shall be punishable by a fine of not more than fifty dollars for each offense. This is the exclusive remedy for violations of this subsection. (Ord. 5106-NS § 1 (part), 1978)

A. Unlawful Real Estate Practices.

1. Transactions Generally. It shall be an unlawful real estate practice for any person to interrupt, terminate or fail or refuse to initiate or conduct any transaction in real property, including but not limited to the rental thereof; to require different terms for such transaction; to include in the terms or conditions of a transaction in real property any clause, condition or restriction; or falsely to represent that an interest in real property is not available for transaction, on the basis of any individual’s sexual orientation.

2. Credit and Insurance. It shall be an unlawful real estate practice for any person to refuse to lend money, guarantee the loan, accept a deed of trust or mortgage, or otherwise refuse to make available funds for the purchase, acquisition, construction, alteration, rehabilitation, repair or maintenance of real property; or impose different conditions on such financing; or refuse to provide title or other insurance relating to the ownership or use of any interest in real property, on the basis of any individual’s sexual orientation.

3. Tenant’s Services. It shall be an unlawful real estate practice for any person to refuse or restrict facilities, services, repairs or improvements for any tenant or lessee on the basis of any individual’s sexual orientation.

4. Advertising. It shall be an unlawful real estate practice for any person to make, print, publish, advertise or disseminate in any way, any notice, statement or advertisement with respect to a transaction or proposed transaction in real property, or with respect to financing related to any such transaction, which unlawfully indicates or attempts to indicate any unlawful preference, limitation or discrimination.

B. Subterfuge. It shall be unlawful to do any of the actions mentioned in subsections (A)(1) through (A)(4) for any reason that would not have been asserted but for the sexual orientation of any individual.

C. Exceptions.

1. Owner Occupied and Small Dwellings. Nothing in this chapter shall be construed to apply to the rental or leasing of any housing unit in which the owner or lessor or any member of their family occupies one of the living units and either: (a) it is necessary for the owner or lessor to use either a bathroom or kitchen facility in common with the prospective tenant; or (b) the structure contains less than three dwelling units.

2. Effect on Other Laws. Nothing in this chapter shall be deemed to permit any rental or occupancy of any dwelling unit or commercial space otherwise prohibited by law. (Ord. 5106-NS § 1 (part), 1978)

A. Unlawful Business Practice.

1. Business Practices Generally. It shall be an unlawful business practice for any person to deny any individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any business establishment on the basis of such individual’s sexual orientation.

2. Advertising. It shall be an unlawful business practice for any person to make, print, publish, advertise or disseminate in any way any notice, statement or advertisement with respect to any business establishment which indicates that such establishment engages or will engage in any unlawful business practice.

B. Subterfuge. It shall be unlawful to do any of the acts mentioned in subsections (A)(1) or (A)(2) of this section for any reason that would not have been asserted but for the sexual orientation of any individual. (Ord. 5106-NS § 1 (part), 1978)

No later than 60 days after the effective date of this section, all single-occupancy restrooms in businesses and other places of public accommodation shall be gender neutral, meaning that access shall not be restricted to persons of a specific sex or gender identity. (Ord. 7408-NS § 1, 2015)

A. Unlawful Service Practices.

1. City Facilities. It shall be an unlawful service practice for any person to deny any individual the full and equal enjoyment of, or to place different terms and conditions on the availability of, the use of any City facility on the basis of such individual’s sexual orientation.

2. City Services. It shall be an unlawful service practice for any person to deny any individual the full and actual enjoyment of, or to impose different terms or conditions on the availability of, any City service on the basis of such individual’s sexual orientation.

3. Supported Facilities and Services. It shall be an unlawful service practice for any person to deny any individual the full and equal enjoyment of, or to impose different terms and conditions upon the availability of, any service, program or facility wholly or partially funded or otherwise supported by the City on the basis of such individual’s sexual orientation. This subsection shall not apply to any facility, service or program which does not receive any assistance from the City which is not provided to the public generally.

4. Advertising. It shall be an unlawful service practice for any person to make, print, publish, advertise or disseminate in any way any notice, statement or advertisement with respect to any service or facility provided by either the City or an organization described in subsection (A)(3) of this section which indicates that the City or an organization described in subsection (A)(3) of this section engages in or will engage in unlawful service practices.

B. Subterfuge. It shall be an unlawful discriminatory practice to do any of the acts mentioned in subsections (A)(1) through (A)(4) for any reason which would not have been asserted but for the sexual orientation of any individual. (Ord. 5106-NS § 1 (part), 1978)

A. Unlawful Educational Practices.

1. Admission. It shall be an unlawful educational practice for any person to deny admission, or to impose different terms or conditions on admission, on the basis of such individual’s sexual orientation.

2. Services. It shall be an unlawful educational practice for any person to deny any individual the full and equal enjoyment of, or to impose different terms or conditions upon the availability of, any service or program offered by an educational institution on the basis of such individual’s sexual orientation.

3. Facilities. It shall be an unlawful educational practice for any person to deny any individual the full and equal enjoyment of, or to impose different terms or conditions upon the availability of, any facility owned or operated by an educational institution on the basis of such individual’s sexual orientation.

4. Advertising. It shall be an unlawful educational practice for any person to make, print, publish, advertise or disseminate in any way any notice, statement or advertisement with respect to an educational institution which indicates that such institution engages in, or will engage in, unlawful educational practices.

B. Subterfuge. It shall be an unlawful discriminatory practice to do any of the acts mentioned in subsections (A)(1) through (A)(4) of this section for any reason which would not have been asserted but for the sexual orientation of any individual.

C. Exception. It shall not be an unlawful discriminatory practice for a religious or denominational institution to limit admission, or give other preferences to applicants of the same religion. (Ord. 5106-NS § 1 (part), 1978)

Any person who violates any of the provisions of this chapter or who aids in the violation of any provisions of this chapter shall be liable for, and the court must award to the individual whose rights are violated, actual damages, costs, reasonable attorney’s fees, and not less than two hundred dollars but not more than four hundred dollars in addition thereto. In addition, the court may award punitive damages in a proper case. (Ord. 5106-NS § 1 (part), 1978)

A. Civil Action. Any aggrieved person may enforce the provisions of this chapter by means of a civil action.

B. Injunction.

1. Any person who commits, or proposes to commit, an action in violation of this chapter may be enjoined therefrom by any court of competent jurisdiction.

2. Action for injunction under this subsection may be brought by any aggrieved person, by the district attorney, or by any person or entity which will fairly and adequately represent the interests of the protected class. (Ord. 5106-NS § 1 (part), 1978)

Actions under this chapter must be filed within one year of the alleged discriminatory acts. (Ord. 5106-NS § 1 (part), 1978)