Wednesday, April 22, 2015

Little Rock Passes Anti-Discrimination Ordinance: Conflict with Arkansas Statute Prohibiting Local Anti-Discrimination Ordinances?

        On Tuesday, the city of Little Rock, Arkansas, passed an anti-discrimination ordinance that may conflict with a recently-enacted Arkansas statute that limits local civil rights ordinances in the State.  The Little Rock ordinance provides, among other things, that the city will not contract with any entity that discriminates against anyone on the basis of a set of characteristics, including but not limited to sexual orientation and gender identity.  Last month, however, in response to a similar anti-discrimination ordinance passed by the City of Fayetteville, the Arkansas legislature enacted Act No. 137.  That Act prohibits local governments in that State from exceeding the anti-discrimination protections—including but not limited to protections against employment discrimination—afforded under state law.  (For more, see this previous post.) 

             How does the Little Rock ordinance survive, given Act No. 137?  Before Little Rock’s ordinance passed, City Attorney Thomas Carpenter issued a legal opinion, dated April 19, 2015.  There, Carpenter concluded, among other things, that the ordinance did not conflict with Arkansas state law.  The pertinent text of Act No. 137 provides:

 A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.

 Ark. Code § 14-1-403(a). 

     In his opinion, City Attorney Carpenter found no conflict between Act 137 and the ordinance, because the ordinance “lists types of discrimination that are already prohibited for one reason or another by state law.”  For the ordinance’s coverage of “sexual orientation” and “gender identity” discrimination, Carpenter pointed to three State statutes currently in the Arkansas statute books: (1) an anti-school-bullying statute that covers bullying based on attributes that include “gender identity” and “sexual orientation,” Ark. Code § 6-18-514(b)(1); a statute requiring shelters to develop a policy for delivering services “without regard to . . . sexual preference,” Ark. Code § 9-4-106(1); and a statute letting a person change their birth records with a court order indicating that person’s sex had been changed “by surgical procedure” and that person’s name had been changed, Ark. Code § 20-18-307(d).

        This legal analysis appears to turn on how a court would read Act No. 137’s phrase “discrimination on a basis not contained in state law.”  The City Attorney seems to read that phrase to mean that if an Arkansas statute protects a person from any type of adverse action based on “sexual orientation,” then “sexual orientation” is therefore “a basis . . . contained in state law.”  The rival reading:  The Arkansas legislature intended that phrase to cover both the protected characteristic and the type of adverse action motivated by that characteristic.  By this reasoning, since no Arkansas law (including the Arkansas Civil Rights Act, Ark. Code § 16-123-107) expressly prohibits an employer from refusing to hire someone (the “discrimination”) because of his or her sexual orientation (the “basis”), Act No. 137 does not let Little Rock refuse to contract with an entity for the reason that it refuses to hire people because they are gay.

     The City Attorney’s legal opinion did not address another legal argument available to defend the ordinance: Act No. 137 is void, because it was really motivated by anti-gay animus, and thus violates the “equal protection” guaranteed by the US Constitution and the “equality of all persons” guaranteed by article 2, section 3, of the Arkansas Constitution.


 --Sachin Pandya

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