|
|
You have two critically important research tasks at the very start. You need to find out what policies on discrimination the institution you plan to focus on has the power to pass, and what policies already exist. Two factors will have an important influence on the kind of policy you decide to propose: the kind of institution you want to have adopt the policy, and what superior law allows.
Divide the institutions which could adopt policy into three groups: first, businesses, nonprofit organizations, and social groups; second, governments; third, universities. Which group an organization falls into will have an impact on who can be told not to discriminate and how the policy is enforced.
Businesses and clubs generally have power over themselves, but not over anyone else. This means that they can adopt policies saying they will not discriminate themselves. They can probably also adopt policies insisting that those with whom they do business agree not to discriminate.
Unlike businesses etc., governments generally have power over people and organizations located in the area the government covers, as well as power over themselves. State governments all have power to pass all three kinds of nondiscrimination policies; they can outlaw discrimination by themselves, insist that those who do business with them have nondiscrimination policies and they can insist that employers, landlords, business, schools, etc. located in the state not discriminate.
Cities often look like little state governments, so people often assume they have the same powers. Sometimes they don't. Cities get their power to govern from states, and states often limit what powers they pass on. Sometimes they do this for all cities in the state with a set of general rules on city powers. Sometimes, each city has its own charter, spelling out its powers individually (just to make life interesting, some states do both).
The powers granted to cities are sometimes very specific, and while almost all can adopt nondiscrimination policies for themselves, some may not be able to insist on nondiscrimination by those who do business with them, and some may not be able to outlaw discrimination by business, etc., located in the city without special permission from the state. However, don't accept the argument that the city does not have power without getting a lawyer to do some research for you. Claiming lack of power is a favorite way to deflect pressure for a more expansive policy. Lots of cities do have some general "police power," which is what they need for nondiscrimination laws that cover everyone in the city.
Universities are something of a hybrid. They certainly can make policy for themselves and they have the same right to insist on nondiscrimination by those who do business with them that business and clubs have.
But Universities have some government-like powers as well, particularly over campus clubs and associations, especially those which are sponsored or supported by the school. Universities also sometimes authorize student businesses. Universities probably can impose nondiscrimination policies on many of these. However, if a group is academically focused, and not a pure social club or a pure business, the university may be reluctant to impose nondiscrimination policies, on the theory that they interfere with academic freedom.
Policies which say the institution itself will not discriminate can always be enforced (and typically are) by some type of internal complaint; to personnel, to an equal opportunity office, etc. The problem with internal enforcement is that organizations find themselves at fault much less often than neutral outsiders do. If you can get a nondiscrimination policy into a union contract, this usually gives you a better remedy, because the grievance process usually leads at some point to a neutral arbitrator.
Virtually any organization has the power to adopt a policy promising not to discriminate which can be enforced in court if it violates the policy. Few are willing to do that in so many words. In some states, promises in some employer personnel policies or in club charters and by-laws can be enforced in court even if they don't say that. Ask your lawyer if that is possible.
Policies which say those who do business with the organization must agree not to discriminate are usually enforced by the organization that insisted on the promise. Typically, the remedy is to cancel the contract. In most states, the policy could say that all contractors must promise not to discriminate, that the promise is for benefit of those covered by it and that they can sue. Contractors are usually very reluctant to agree to this.
In addition to the kinds of enforcement businesses and clubs and associations use, governments sometimes create commissions and give them power to take complaints under all types of policies. Typically the commissions can mediate and try to settle the complaint. Cities can always give commissions the power to order the city itself to return someone to a job or pay damages (although this is not common), and they can always make contractors agree to that as a part of the deal.
Some cities have the power to create commissions which can order private employers, landlords, businesses etc. to stop discriminating and to pay damages. Most cities can make violation of a nondiscrimination policy a small crime (usually a misdemeanor). Some can say that anyone who is discriminated against may go to court.
The other major limit on what kind of policy you can have comes from "superior law." This is basically a problem with governments. The federal government is at the top of the power structure, followed by the states and then by local government, which is often divided among relatively equal, separate agencies (you could have a city government, an independent transit district and an independent school district all existing together at the same time without one having power over the other).
Laws - federal state or local - almost never prevent businesses and universities from adopting policies about their own behavior. Sometimes, you'll hear a school or a company say it can't adopt a sexual orientation or gender identity policy because the federal or state government doesn't have one. Don't buy it.
On the other hand, higher government can generally tell lower government not to make policy in a certain area. This is usually called "preemption." Governments can either do this by saying so clearly (which is not all that common), or by regulating something so completely that they "take over the field." This is an excuse that is often used by agencies which just don't want to adopt a policy. If a city says your proposal is "preempted," ask your lawyer to check into it. Federal civil rights laws almost never preempt state or local laws. Congress often says that in so many words. If you are told that a policy proposal is preempted by federal law, be very suspicious.
State civil rights laws sometimes do preempt local laws which would apply to private employers, landlords, etc. Although opponents sometimes claim state laws preempt even policies for the city itself, this is rare. Moreover, while state laws often preempt local laws which cover the same forms of discrimination the state law covers, they less often preempt different local laws. So it is less likely that a local policy on sexual orientation and gender identity discrimination will be preempted if state law does not cover sexual orientation and gender identity discrimination.
>> Next: 5. What Exists
|
|
