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HomeMy WebLinkAboutOrdinance 12570 ORDINANCE NO. _ lo~~ /C~ AN ORDINANCE AMENDING DIVISION 3 "EMPLOYMENT PRACTICES", ARTICLE III "DISCRIMINATION", CHAPTER 17, "HUMAN RELATIONS" OF THE CODE OF THE CITY OF FORT WORTH, TEXAS (1986), AS AMENDED, TO PROHIBIT EMPLOYMENT DISCRIMINATION ON THE BASIS OF DISABILITY, PROVIDING A SEVERABILITY CLAUSE, MAKING THIS ORDINANCE CUMULATIVE OF PRIOR ORDINANCES AND REPEALING ALL PRIOR ORDINANCES IN CONFLICT HEREWITH, PROVIDING FOR PUBLICATION OF THIS ORDINANCE AND PROVIDING AND EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS SECTION 1 Chapter 17 "Human Relations," Article III "Discrimination," Division 3 "Employment Practices," of the Code of the City of Fort Worth, Texas (1986), as amended, is hereby further amended, and after said amendment shall read as follows. DIVISION 3 EMPLOYMENT PRACTICES Sec.17-66. Definitions As used in this section. Auxiliary aids and services The term "auxiliary aids and services" includes---- (A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments, (B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments, (C) acquisition or modification of equipment or devices, and (D) other similar services and actions. Disability The term "disability"' means, with respect to an individual-- (A) a physical or mental impairment that substantially limits one or more of the mayor life activities of such individual, (B) a record of such an impairment; or (C) begin regarded as having such an impairment. Commission The term "Commission" means the Fort Worth Human Relations Commission. Covered entity The term "covered entity" means an employer, employment agency, labor organization, or joint labor-management committee. Direct threat The term "direct threat" means a significant risk to the health or safety of others that cannot be ehmmated by reasonable accommodation. Employee The term "employee" means an-individual employed by an employer Employer (a) In general The term "employer" means a person engaged m an industry affecting commerce who has 15 or more employees for each working day m each of 20 or more calendar weeks in the current or preceding calendaz year, and any agent of such person. (b) Exceptions The term "employer" does not include-- (1) the United States, a corporation wholly owned by the government of the United States, or an Indian Tribe; or (2) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of Title 26 Illegal use of drugs (a) In general The term "illegal use of drugs" means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U S C 812) Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act [21 U S C.A. § 801 et seq ] or other provisions of Federal law (b) Drugs The term "drug" means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act [21 U S C.A. § 812]. Person, etc The terms "person", labor organization", "employment agency", "commerce", and "industry affecting commerce", shall have the same meaning given such terms in Title 42, section 2000e of the United States Code, or its successor statute Qualified individual with a disability The term "qualified mdrvidual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the fob Reasonable accommodation The term "reasonable accommodation" may include -- (a) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, and (b) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Undue hardship (a) In general The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (b) (b) Factors to be considered In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include-- (1) the nature and cost of the accommodation needed under this chapter; (2) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (3) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities, and (4) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity Sec. 17-67 (a) Discrimination prohibited It shall be unlawful for any covered entity to discriminate against any individual because of age, race, color, religion, sex, disability or national origin in any manner involving employment, including the recruitment of applicants for employment, advertising, hiring, layoff, recall, termination of employment, promotion, demotion, transfer, compensation, employment classification, training and selection for training or any other terms, conditions or privileges of employment. (b) Particular provisions concerning disability discrimination No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, fob training, and other terms, conditions, and privileges of employment. (1) Construction As used m this section, the term "discriminate" includes -- (A) limiting, segregating, or classifying a job applicant or employee rn a way that adversely affects the opportunrtrtes or status of such applicant or employee because of the disability of such applicant or employee; (B) participating rn a contractual or other arrangement or relationship that has the effect of sub~ectrng a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this division (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs), (C) utilizing standards, crrterra, or methods of administration -- (1) that have the effect of discrimination on the basis of disability; or (2) that perpetuate the discrimination of others who are subject to common administrative control, (D) excluding or otherwise denying equal fobs or benefits to a qualified individual because of the known disability of an individual with whore the qualified individual rs known to have a relationship or association. (E) (1) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (2) denying employment opportunities to a~ob applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant; (F) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to bejob-related for the position in question and is consistent with business necessity; and (G) failing to select and administer tests concerning employment m the most effective manner to ensure that, when such test is administered to a fob applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure). (2) Medical examinations and inquiries (A) In general The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries. (B) Preemployment (1) Prohibited examination or inquiry Except as provided in paragraph (2), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an i 1 individual with a disability or as to the nature or severity of such disabilrty (2) Acceptable inquiry ~ A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions. (C) Employment entrance examination A covered entity may require a ,medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if--- (1) all entering employees are subjected to such an examination regardless of disability; (2) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and m separate medical files and is treated as a confidential medical record, except that-- ! (a) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations, (b) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (c) government officials investigating compliance with this chapter shall be provided relevant information on request; and (3) the results of such examination are used only in accordance with this subchapter (D) Examination and inquiry (1) Prohibited examinations and inquiries A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disabilrty or as to the nature or severity of the disability, unless such examination or inquiry is shown to be ~ob- related and consistent with business necessity (2) Acceptable examinations and inquiries A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform fob-related functions. (3) Requirement Information obtained under subparagraph (2) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (2) and(3) of paragraph (D) (c) Defenses (1) In general It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disabiltiy has been shown to bejob-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter (2) Qualification standards The term "qualification standards" may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (3) Religious entities (A) In general This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference m employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. (B) Religious tenets requirement Under this division, a religious organization may require that all applicants and employees conform to the religious tenets of such organization. (4) List of infectious and communicable diseases (A) In general The list of infectious diseases shall be that published by the Secretary of Health and Human Services of the United States or any successor official, as provided by federal law (B) Apphcahons In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the Secretary of Health and Human Services under paragraph (A), and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling. (C) Construction Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the. list of infectious or communicable diseasesa and the modes of transmissability published by the Secretary of Health and Human Services. (d) Illegal use of drugs and alcohol (1) Qualified individual with a disability For purposes of this division, the term "qualified mdrvidual with a disability" shall not include any employee or applicant who is currently engaging m the illegal use of drugs, when the covered entity acts on the basis of such use. (2) Rules of construction Nothing m subsection (1) of this section shall be construed to exclude as a qualified individual with a disability an individual who -- (A) has successfully completed a supervised drug rehabilitation program and is no longer engaging m the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; (B) is participating in a supervised rehabilitation program and is no longer engaging in such use; or (C) is erroneously regarded as engaging m such use, but is not engaging m such use; except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including be not limited to drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs. (3) Authority of covered entity A covered entity -- (A) may prohibit the illegal use of drugs and the use of alcohol at the workplace by an employee; (B) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace, (C) may require that employees behave m conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U S C 701 et seq ), (D} may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or~ob performance and behvior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee; and (E) may, with respect to Federal regulations regarding alcohol and the illegal use of drugs, require that -- (i) employees comply with the standards established in such regulations of the Department of Defense, if the employees of the covered entity are employed in an industry subject to such regulations, including complying with regulations (if any) that apply to employment m sensitive positions m such an industry, in the case of employees of the covered entity who are employed in such positions (as defined in the regulations of the Department of Defense), (ii) employees comply with the standards established in such regulations of the Nuclear Regulatory Commission, if the employees of the covered entity are employed in an industry subject to such regulations, including complying with regulations (if any) that apply to employment m sensitive positions in such an industry, in the case of employees of the covered entity who are employed m such positions (as defined in the regulations of the Nuclear Regulatory Commission), and (iii) employees comply with the standards established in such regulations of the Department of Transportation, if the employees of the covered entity are employed in a transportation industry subject to such regulations, including complying with such regulations (if any) that apply to employment m sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such positions (as defined m the regulations of the Department of Transportation). (4) Drug Testing (A) In general For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination. (B) Construction Nothing in this subchapter shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by fob applicants or employees or making employment decisions based on such test results. (C) Bidding on Contracts With the City of Fort Worth; Covenant Required (1) No bid submitted to the city by an employer or general contractor shall be considered, nor shall any purchase order be issued nor contract awarded by the city to such employer or general contractor, unless such employer or general contractor has executed as a provision contained m such purchase order, contract or agreement a covenant assuring that its employees are not discriminated against, as prohibited by the terms of this division. (2) It shall be the responsibility, obligation and duty of any such employer or general contractor to ascertain and furnish covenants to the city that no labor organization, subcontractor or employment agency either furnishing or referring employee applicants to such employer is discriminating against its employees, as prohibited by the terms of this division. (D) Notice Requirement Any employer, general contractor, labor organization or employment agency subject to the provisions of this division shall post, m a conspicuous place available to all employees and applicants for employment, notices apprising employees and applicants of this division. Sec. 17-68. Maintenance of independent contractor relationship. Neither this division nor any section or provision of this division shall be interpreted or applied so as to interfere with, impair or destroy the independent contractor relationship between the city and any person bidding on or engaged in the performance of any existing contract for public work as an independent contractor of the city Sec.17-69. Enforcement. (a) It is the intention of the city council that the human relations commission shall be authorized to enforce the provisions of this division under the supervision of the city manager, in compliance with the provisions of section 2 of chapter V of the charter (b) Following complaint and provided that there is justifiable reason to believe there is a violation of any provision of this division, the human relations commission is authorized to investigate and resolve any such complaint involving any employer, general contractor, labor organization or employment agency subject to the provisions of this division. If such complaint cannot be resolved in a manner satisfactory to such commission, it may refer same to the city attorney and/or to the appropriate federal office. Nothing said or done during and as a part of any such investigation or attempt at resolution shall be made public without the written consent of the persons concerned. (c) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved which alleges that an employer, general contractor, employment agency or labor organization has engaged in an unlawful employment practice, the human relations commission may cause a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) to be served upon such employer, general contractor, .employment agency or labor organization (hereinafter referred to as "respondent") within ten (10) days and may make an investigation thereof. (1) Any such charge shall be m writing, under oath or affirmation, and shall contain such information and be in such form as the human relations commission requires. Such charge shall be filed wrthm one hundred and eighty (180) days after the alleged unlawful employment practice occurred. Such charges shall not be made public. (2) Should the human relations commission determine, after such investigation, that there is not reasonable cause to believe that the charge is true, such commission shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of such action. (3) If the aforesaid investigation determines that there is reasonable cause to believe that the charge is true, the human relations commission may endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion. Sec. 17-70. Certain practices not unlawful. (a) This division shall not apply to any employer with respect to the employment of aliens outside the city, or to a religious corporation, association, educational mstrtution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities. (b) Notwrthstandmg any other provisions of this division. (1) It shall not be unlawful for an employer to hire and employ employees, for an employment agency to classify or refer for employment agency to classify or refer for employment any individual, for a labor organization to classify rts membership or to classify or-refer for employment any individual, or for an employer, labor organization or~omt labor- management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex or national origin in those certain instances where religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. (2) It shall not be unlawful for a school, college, university or other educational institution or mstrtution of learning to hire and employ employees of a particular religion if such school, college, university of other educational mstrtution or mstrtution of learning is, in whole or n substantial part, owned, supported, controlled or managed by a particular religion or by a particular religious corporation, association or society, or if the curriculum of such school, college, university or other educational institution or institution of learning is directed toward the propagation of a particular religion. (c ) No provision of this division shall be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a communist-action or communist-front organization by final order of the subversive activities control board pursuant to the Subversive Activities Control Act of 1950 (d) Notwithstanding any other provision of this division, rt shall not be unlawful for an employer to fail or refuse to hire and employ an individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment m any position, if• (1}the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed m the interest of the national security of the United States under any security program m effect pursuant to or administered under any statute of the United States or any executive orderof the president; and (2) such individual has not fulfilled or has ceased to fulfill that requirement. (e) Notwithstanding any other provision of this division, it shall not be unlawful for an employer to apply different standards of compensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of age, race, color, religion, sex, disability or national origin, nor shall rt be unlawful for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of age, race, color, religion, sex, disability or national origin. It shall not be unlawful under this division for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U S C 206(d)) (f) Nothing contained m this division shall be interpreted to require any employer, employment agency, labor organization or joint labor-management committee subject to this division to grant preferential treatment to any individual or to any group because of the age, race, color, religion, sex, disability or national origin of such individual or group on account of an imbalance which may exist with respect to the total number of percentage of persons with disabilities or of any age group, race, color, religion, sex or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed m, any apprenticeship or other training program, in comparison with the total number or percentage of persons of with disabilities or of such age group, race, color, religion, sex or national origin in any community, state, section or other area, or in the available work force m any community, state, section of other area. (g) Nothing contained m this division shall be construed to repeal or modify any federal, state, territorial or local law creating special rights or preference for veterans or Indians. (h) Nothing in this division shall be construed to make unlawful discrimination based upon the ages of persons who are less than forty (40) years old. (I) Nothing m this division shall be interpreted to make unlawful discrimination with respect to aliens who entered and reside in the United State illegally Sec. 17-71. Violations; penalty. Any person, firm, association of persons, company or corporation, or their agents, servants or employees, who violate, disobey, omit, neglect or refuse to comply with any provision of this division shall be punished by a fine not to exceed two hundred dollars ($200 00), and each day that a violation exists is hereby declared to be a distinct and separate offense and punishable as such, all as provided for m section 1-6 of this Code. Secs. 17-72--17-85. Reserved. SECTION 2. This ordinance shall be cumulative of all provisions of all ordinances and of the Code of the City of :Fort Worth, Texas (1986), as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 3 It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation m this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 4 The City Secretary is hereby directed to publish the caption, penalty clause and effective date of this ordmanace for two (2) days in the official newspaper of the City of Fort Worth, Texas, as authorized by Section 52.013 of the Texas Local Government Code SECTION 5 This ordinance shall take effect and be in full force andeffect from and after the date of rts passage and publication as required by law, and rt is so ordained. APPROVED AS TO FORM AND LEGALITY =,/,S City orney Date ~ Adopted. ~ - ~ - Effective City of Fort Wordy Texas Mayor and Council Communication DATE 07/09/96 RF3FBR$NCI3 NUMBER G-11517 LOG NAME 07FAIR PAGI3 1 of 1 SUBJECT ORDINANCE AMENDING THE CITY'S "FAIR EMPLOYMENT ORDINANCE" TO INCLUDE COVERAGE OF DISABLED CITIZENS RECOMMENDATION It is recommended that the City Council adopt the attached ordinance which amends Chapter 17, Article III, Division 3 of the Code of the City of Fort Worth This ordinance amendment is for the purpose of including Disability in the list of "protected classes" under the City's Fair Employment Ordinance, forbidding discrimination in employment DISCUSSION The City of Fort Worth's Fair Employment Ordinance is that division of the City Code which forbids employment discrimination within Fort Worth Currently, the ordinance forbids discrimination on the bases of race, sex, national origin, religion, age and color In 1990, with the passage of the Americans with Disabilities Act, the category of Disability was added to the list of protected classes on the federal level The addition of Disability to the City's Fair Employment Ordinance would allow disabled citizens of Fort Worth to have employment discrimination charges processed locally by the Fort Worth Human Relations Commission rather than their charges being deferred to the U S EEOC The investigation and processing of such charges locally is seen as a more efficient process for both Charging Parties and the Employers against whom the charges are filed Through an annual worksharing agreement with the U S EEOC, the Human Relations Commission would be reimbursed on a per-case basis for charges filed by disabled citizens The Fort Worth Human Relations Commission, at its meeting March 28, 1995, unanimously approved the inclusion of disability in the Fair Employment Ordinance FISCAL INFORMATION/CERTIFICATION The Director of Fiscal Services certifies that this ordinance amendment has no material effect on City funds RG f Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) APPROVED 9 CITY COUNCIL Ramon Guajardo 610 Originating Department Head: Michael Ivey, Acting 7567 (from) ~ I ~L~s.fJ ~ of ~ ~ S y ets City For Additional Information City of host ~ottk, Z~ai! Contact: Michael Ivey, Acting 7567 Printed on Recyded Paper Adopted Ordm~nce No.