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The following outlines some of the important sections which you'll find in the models laws and policies. You need to understand them so you can explain them and deal with proposed changes in negotiation. Like the models, some of this materials could be dated by the time you get to work.
For the most part, these sections apply to the more detailed kinds of policies which governments enact as laws and ordinances, either for themselves or to control behavior of others.
Many policies contain short summaries of the policy's goals, along with a capsule version of the case for the policy -- a few short statements summarizing the proof that it is needed and the arguments for it. These can be valuable, especially if you are going to be involved in a campaign where you hope to publish the policy or use it to help persuade the public. However, you've got to keep them short and simple.
Findings can also be helpful if the policy is challenged legally. Opponents have grown fond of arguing in court that some types of nondiscrimination policies are not really very important. Summarizing evidence developed at hearings could be helpful in meeting those arguments, especially if your board keeps incomplete official records of its hearings (as most do).
Earlier sections addressing what kinds of civil rights laws exist and what kinds are possible also explain why a policy enforced by someone other than the institution covered by it is a good idea.
This little provision may be the most important part of any policy. Nondiscrimination laws don't do much good unless people know they exist.
Notices are most important in the work place. Federal and most state laws require nondiscrimination signs at many job sites. Since those signs don't mention sexual orientation or gender identity, people are apt to think it is ok.
Since notice violations are often inadvertent, the model laws and policies provide for a small fine only for wilful violations, (violations after an employer knows the rules).
An exception is a special section of a law or policy which says that the policy won't be applied to something which would be covered without the exception. For example, a policy which generally bans discrimination in renting housing might have an exception for someone who is renting a room in his or her apartment.
The purpose is to take account of some competing interest which the board thinks is legitimate. In the housing example, the board might think that people ought to be more arbitrary about who they live with. Just to make life interesting, exceptions are often called exemptions.
Negotiations over policy tend to focus on exceptions. If you are trying to add sexual orientation and gender identity to an existing policy, or get parity with a different policy which covers other kinds of discrimination, you'll probably have to accept most of the exceptions which exist for other groups.
In general, you should fight against attempts to create special exceptions for sexual orientation and gender identity discrimination. In a few instances they can be a response to differences in different types of discrimination. For example, one can legitimately say that our history of legally mandated systems of segregation and worse make a special case for affirmative action with race and sex discrimination. One might also argue that domestic partnership presents a unique concern for same-sex couples.
However, most of the time, special exceptions for sexual orientation or gender identity reflect the most obnoxious stereotypes about LGBT people. It is important to fight to see that your policy doesn't legitimize those stereotypes.
Typically, the two best arguments against special exceptions are proof that the exception is based on an inaccurate stereotype, and evidence that the arguments for the exception could apply to other types of discrimination as well.
The following sections focus on some areas where negotiations over exemptions are common. The first section comes up with many types of policies; the remainder are mainly issues with government policies which regulate others (employers, landlords, etc.).
If your policy applies to any situation involving couples, domestic partners are likely to come up. For example, if you are proposing a nondiscrimination policy for a business which pays moving expenses for spouses, or which provides for bereavement leave if a spouse dies, someone is apt to ask if the policy will require payment of expenses or leave for the domestic partners of lesbian and gay employees. (and bi and trans couples who are same-sex).
The answer depends on what you say in the policy. If you say nothing, a nondiscrimination policy may not require any recognition of domestic partners. Although policies which recognize married couples discriminate against same-sex relationships, they do so because states don't allow same-sex marriage. Many courts which have looked at these policies have said that they discriminate on the basis of marital status, not sexual orientation.
If you want the policy to include recognition of domestic partners, you should adopt a domestic partnership policy. Especially if health benefits are involved, domestic partnership can be one of the more hotly contested questions. Be careful about terms if you decide to treat domestic partnership as a separate issue, or to compromise by excluding it. You don't want to allow someone to recognize heterosexual but not same-sex unmarried couples. Terms which say that the law won't be interpreted to require recognition of the domestic partners of same-sex couples may do that.
Affirmative action is probably the least popular area of civil rights these days. People often demand that new policies exclude it by saying that affirmative action is not required.
The problem is that older federal civil rights laws use the term "affirmative action" to include almost any remedy for a victim of discrimination, including things like getting a job back or getting lost pay. If you say the policy doesn't require affirmative action, you could be taking away most of its remedies.
One solution is to ban the use of quotas. This is what most people are really worried about. You don't give up much because, for example, nobody knows either the percentage of the work force which is LGBT or the extent to which a particular company's employees are LGBT people, so you can't really put together a quota system.
If need be, you can extend the section to cover "quota like" devices.
Opponents, borrowing from arguments used against other civil rights laws often argue the law should say quotas should neither be required nor permitted. If the section is limited to quotas or quota like devices, that should be ok since they aren't practical.
But if an anti-affirmative action section goes further than quotas, you should be careful. Many institutions, police and fire departments for example, have a history of excluding LGBT people. They should be allowed (and in some circumstances, perhaps, required) to do outreach such as advertising in the LGBT press to attract LGBT applicants.
An anti-affirmative action clause should not go beyond quotas and quota like devices, and it should certainly not prevent institutions from deciding to do outreach.
No matter what your policy says, if it is a government policy it won't apply to the operations of a religious group which have to do with faith. For example, employment laws don't apply to hiring of ministers or religion teachers and public accommodations laws don't apply to membership in a church.
They don't apply because the first amendment to the federal constitution exempts core operations of religious groups from government control.
Even though it doesn't matter what the policy says, sometimes board members will want this exemption restated in the policy, at least in part to mollify religious opposition.
Some laws also provide that church operated schools, camps, etc. may give a preference to members of the church. That may seem acceptable, but remember a policy like that will effectively discriminate if the church excludes LGBT people from membership. That typically isn't true with things like race and sex anymore, since few churches exclude people on those bases.
Occasionally, churches will argue they should not be covered by the policy at all. A few states have laws which completely exempt religious organizations from civil rights laws. A complete exception for religious groups probably makes sense if you are adding sexual orientation and gender identity to an existing policy which doesn't cover religious groups.
However, you should try not to accept an exception for religious groups from the policy on sexual orientation and gender identity discrimination which is broader than their exception from policies on race, gender and other types of discrimination. That suggests the disapproval some churches have for gay and trans people today is more legitimate than the disapproval some churches had for Asians, African-americans and women just a few years back. It isn't.
Many people feel that in close quarters, people ought to be able to be more arbitrary. There are some "small housing" exceptions for policies that apply to housing. One applies to roommates, the second is a slightly more expansive bed and bath exception for roomers, and the third is an owner occupied small unit exception.
Occasionally, boards want assurance that the policy doesn't somehow override the city's zoning or occupancy rules. While that in itself isn't a problem, avoid exceptions which say broadly that the policy doesn't require any occupancy not allowed by law. Many states have arcane laws which make it illegal for people to live together if they are not married. Any exception should be carefully tied to zoning and occupancy rules.
Most people work for small businesses, so "small employer" exceptions greatly reduce the coverage of a law. If you are adding sexual orientation and gender identity to a policy with a small employer exception or seeking parity with one, you'll probably have to accept one.
But the case for them is weak. Working with someone is not like living with someone. Since everyone needs to work to live, it is fair to insist on more tolerance of each other in the work place.
Don't accept them unless you are absolutely convinced you can't get the policy for a very long time without them and there is much to be gained by getting it now. These exemptions reinforce the worst stereotypes about LGBT people.
The exception for "bona fide occupational qualifications" allows discrimination if an employer really needs someone of a particular sexual orientation or gender identity to do a job. These come from the original laws on gender discrimination. While it is hard to think of where this might apply to sexual orientation or gender identity, it appears in lots of policies and it is probably harmless. The seniority system exception was designed for institutions with a history of explicit race discrimination. Again, it is hard to see how it might apply, but it is probably harmless.
A denial, also called a disclaimer, is a special section saying the policy won't apply to something which it wouldn't cover anyway. For example, New York City's Policy says that it doesn't make legal anything which state law says is illegal. New York City couldn't do that anyway.
The purpose of denials is to take away arguments from the opposition that prove hard to get rid of even though they are wrong. They give the campaign and members of the board the ability to answer what Tom Stoddard called "insane scenarios" by pointing to the policy and saying "see, that won't happen."
They can be a potent tool, and they can give board members cover with constituents. Since they cover things that won't happen anyway, typically they have no legal effect and are forgotten shortly after the law is passed. In a legal sense, they are relatively harmless.
They are also often insulting. Denials typically include the statement that the board isn't endorsing any particular "lifestyle." Why would you need that denial on a sexual orientation or gender identity discrimination law, but not on a religious discrimination law?
Denials can be more harmful if they perpetuate inaccurate stereotypes. These are not just a political problem. They could be used by courts to narrow the effect of the law in some circumstances. If you are faced with proposals for denials that perpetuate stereotypes, get an expert to help you minimize any damage.
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