Last month, the Birmingham City Council passed an ordinance criminalizing discrimination in education, housing, employment, and public accommodations. The ordinance not only prohibits discrimination based on the federally protected categories of race, sex, national origin, and disability, but it also recognizes familial status (i.e., having minor children), sexual orientation, and gender identity as protected categories. Additionally, the ordinance creates a new Human Rights Commission to handle discrimination complaints. Members of the commission will include the police chief, fire chief, ADA compliance director, a city council staff member, city council district appointees, and representatives from other local organizations.
What the Ordinance Provides
An individual can file a discrimination complaint by seeking a warrant or summons from a magistrate in the Birmingham Municipal Court. The magistrate will refer the complaint to the new Human Rights Commission to investigate and attempt to conciliate the complaint. If the commission does not resolve the matter, it then will go to trial in the municipal court. If found guilty, a business may face a $500 maximum fine. Although that remedy is insignificant relative to damages available under the federal anti-discrimination statutes (backpay, reinstatement, potentially uncapped damages), employers should keep in mind that a plaintiff in federal court could point to a prior municipal court ruling against an employer as evidence of discrimination. Weighing that possibility and also considering the near certainty that an employer would spend more than $500 defending a municipal court claim, employers should look to resolve such claims swiftly.
When Does It Take Effect?
Birmingham’s mayor must sign the ordinance for it to take effect, and that has not yet happened. That task apparently was moved to the backburner after Birmingham’s incumbent mayor, William Bell, lost to opponent Randall Woodfin in an October 3 runoff. Both Bell and Woodfin have expressed support for the ordinance, so we can expect that one of them will sign it into law at some point. Woodfin plans to take office on November 28.
Even assuming the mayor signs the ordinance, the Alabama State Legislature could possibly challenge it. The legislature is not in session again until early 2018 and has not hinted at opening a special session. Legislators are perhaps staying quiet on the issue while Birmingham and Huntsville pursue bids for Amazon’s second headquarters, in light of North Carolina’s recent economic backlash over the state legislature striking down Charlotte’s transgender bathroom ordinance.
Lastly, the city council president who spearheaded the ordinance lost his seat in a runoff shortly after its enactment, and it remains to be seen whether the new city council will follow through on getting the mayor’s signature and creating the new Human Rights Commission.
So, not surprisingly, the new ordinance raises more questions than it provides answers — employers should stay tuned for further developments.