Controversial Gay Rights Ordinance Goes into Effect in Omaha

by Mark M. Schorr

As of March 28, 2012, a new protected category has been created under the Omaha Municipal Ordinance enforced by Omaha’s Human Rights and Relations Department. Omaha residents who are lesbian, gay, bisexual, and transgender are now protected from discrimination in the same way that sex, race, national origin, age, marital status, disability, etc., are protected categories under Nebraska and federal law.

The controversial ordinance was the subject of heated public debate and a lengthy public hearing before the Omaha City Council, which passed it 4-3 on a straight party-line vote (all Democrats voted for, and all Republicans against). Mayor Jim Suttle signed the ordinance on March 15. Although he invited all council members to the public signing, only Councilman Ben Gray, the legislation’s main proponent, was in attendance.

In large part, the controversy surrounding the new ordinance emanates from the fact that neither Title VII of the Civil Rights Act of 1964 (the overriding federal employment discrimination statute) nor the Nebraska Fair Employment Practice Act (NFEPA) grants any protection for including lesbians, gays, bisexuals, and transgendered individuals within the enumerated protected categories. This has led many to claim that the new ordinance is bad public policy because it creates a different standard in Omaha than in the remainder of the state. They say it will result in numerous claims and lawsuits and additional expense for businesses even though it’s highly questionable whether Omaha employers currently discriminate against individuals on the basis of sexual preference.

In any event, many predict the issue will move to a citywide ballot referendum in Omaha in 2013 to repeal the ordinance. Also, some expect a similar effort in Lincoln under the Lincoln Human Rights Commission and ordinances. At this time, Lincoln and Omaha are the only Nebraska cities with separate agencies where aggrieved employees working for very small employers — with one or two employees — may file a discrimination complaint. In contrast, a minimum 15-employee threshold must be met before workers can file a charge with the Nebraska Equal Employment Opportunity Commission (NEOC) or the federal Equal Employment Opportunity Commission (EEOC).

For the time being, Omaha citizens who believe they (1) have been discriminated against in the course of their employment — be it a termination, failure to be hired, denial of promotion, demotion, etc. — or (2) were refused service at restaurants, hotels, or other places have an avenue to file a discrimination charge with the Omaha Human Rights and Relations Department.

Finally, one additional note: Religious organizations are exempt from the ordinance. We will monitor developments and provide updates on the ordinance’s status in future issues of Nebraska Employment Law Letter.

Mark M. Schorr is editor of Nebraska Employment Law Letter and a senior partner at Erickson & Sederstrom, P.C. He works in the law firm’s Lincoln office.