Oakland Municipal Code Ch. 9.44 Discrimination Based on Sexual Orientation

"Business establishment" means any entity, however organized, which furnishes goods, services or accommodations 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: (1) consist only of payment of fees; (2) consist of requirements under which a substantial portion of the residents of this city could qualify; or (3) consist of an otherwise unlawful business practice.

"Discrimination" means any act, policy or practice which, regardless of intent, has the effect of subjecting any person to differential treatment as a result of that person's sexual orientation or gender identity or expression. The phrase "differential treatment" includes any limitation on a person's full, unsegregated and equal access to or enjoyment of, employment, real estate transactions, business establishments, and municipal services.

"Gender identity or expression" means having or being perceived as having a gender-related identity or expression whether or not stereotypically associated with a person's actual or perceived sex.

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

"Real estate transactions" means and includes the sale, repair, improvement, lease, rental, or occupancy of any interest or portion of any interest in real property and shall also include the extension of credit, financing, insurance or services in connection with the sale, repair, improvement, lease, rental, or occupancy of any such interest in real property.

"Sexual orientation" means actual or perceived homosexuality, heterosexuality, or bisexuality.

(Ord. 12573 (part), 2004: prior code § 3-20.01)

A. In General. It is unlawful for any person to do anything which has the effect of discriminating against any person as a result of that person's sexual orientation or gender identity or expression, with respect to any of the following activities:

1. Employment. Any aspect of employment, opportunities for employment, or union membership;

2. Real Estate. Any real estate transaction;

3. Business Establishments. The availability of goods, facilities or services from any business establishment;

4. City Services and Facilities. The use or availability of any municipal service or facility;

5. City Supported Services and Facilities. The use or availability of any service or facility wholly or partially funded or otherwise supported by the city.

B. Exceptions.

1. Employment.

a. Bona fide Occupational Qualification.

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

2. Burden of Proof. In any action brought under Section 9.44.040 or 9.44.050 if a party asserts that an otherwise unlawful act of discrimination is justified as a bona fide occupational qualification, that party shall have the burden of proving: (1) that the discrimination is in fact a necessary result of a bona fide occupational qualification; and (2) that there exists no less discriminatory means of satisfying the occupational qualification.

b. Seniority Systems. It shall not be unlawful discriminatory practice under subsection (A)(1) of this section for an employer to observe the conditions of a contractual seniority system provided such system is 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.

2. Real Estate Transactions.

a. Owner Occupied Dwellings. Nothing in subsection (A)(2) of this section shall be construed to apply to the rental or leasing of any housing unit in which the owner or lessor or any member of his or her family occupies one of the living units and it is necessary for the owner, lessor or family member to use either a bathroom facility or a kitchen facility in common with the prospective tenant.

b. Effect on Other Laws. Nothing in subsection (A)(2) of this section shall be deemed to permit any rental or occupancy of any dwelling unit or commercial space otherwise prohibited by law.

3. City Supported Services and Facilities. Subsection (A)(5) of this section does not apply to facilities or services which only receive assistance from the city which is provided to the public generally.

C. Notices.

1. Requirements. Every employer with fifteen (15) or more employees, every labor organization with fifteen (15) or more members, and every employment agency shall post and keep posted in conspicuous place 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 and/or gender identity or expression is prohibited by law. Chapter 9.44 of the Oakland Municipal Code.

2. Alternate Compliance. Notwithstanding the above, the provisions of this subsection may be complied with by adding the words "sexual orientation and/or gender identity or expression" 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 Chapter 9.44 of the Oakland Municipal Code.

D. Advertising. It is unlawful for any person to make, publish or disseminate any notice or statement which indicates that such person engages in or will engage in any practice prohibited by this chapter.

(Prior code § 3-20.02)

E. It shall be an unlawful practice for any person to deny any individual access to the full and equal enjoyment of privileges, benefits, goods, services and facilities, including dressing and bathroom facilities, consistent with the person's gender identity.

(Ord. 12573 (part), 2004: prior code § 3-20.02)

A. Any person who violates any provision of Section 9.44.020A, shall be liable in civil damages including costs and attorney's fees, as provided by California Civil Code Section 52.

B. Any person who wilfully violates Section 9.44.020C, may be punished by a fine of not more than fifty dollars ($50.00) for each offense (punishable as an infraction).

(Prior code § 3-20.03)

A. Anyone who violates Section 9.44.020(A)(1) through (5) or who aids or incites such violation shall be deemed guilty of an infraction.

B. Each violation of the notice provisions, Section 9.44.020(C)(1), shall be punishable as an infraction.

(Prior code § 3-20.04)

A. Civil Action. Any aggrieved person may enforce this chapter in a civil action in any court of competent jurisdiction.

B. Injunctions. Any person may bring a civil action in any court of competent jurisdiction to enjoin any person who commits or proposes to commit any act in violation of this chapter.

(Prior code § 3-20.05)

Judicial actions under this chapter must be filed within two years of the alleged discriminatory acts.

(Prior code § 3-20.06)

Any written or oral agreement whereby any provision of this chapter is waived or modified, is against public policy and void.

(Prior code § 3-20.08)

If any of the provisions of this article or the application thereof to any person or circumstances is held invalid, the remainder of this chapter, including the application of such a part or provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this chapter are severable.

(Ord. 12573 (part), 2004)