Fairness Ordinance

Frequently Asked Questions by Employers

Q.    Do I have to ask individuals to identify their "sexual orientation" or "gender identity" at the employment application stage?

A.    No.  The Fairness Ordinance does not mandate quotas or hiring goals.  There is no affirmative requirement to ensure that your workplace includes gays, lesbians, bisexual or transgender individuals; it only requires that these characteristics be eliminated as bases for employment-related decision making.

Q.    Isn't this ordinance just "special protection" for gays and lesbians, which is not needed because of other civil rights laws?

A.    No.  The ordinance protects not only gays and lesbians, but also heterosexuals who are erroneously labeled as gay or lesbian and discriminated against because of the label.  It also protects heterosexual employees from sexual harassment by gay or lesbian supervisors or co-workers.

Q.    Since I can't tell who is gay or lesbian from who isn't, how will I know if I'm discriminating?

A.    What you don't know can't hurt you.  Many employees who are protected do not obviously display their protected characteristics, e.g., religion, disability.  Their identity may be revealed in casual workplace conversation, but they nonetheless are protected, the same principles apply here.

Q.    Must my company now be permitted to invite partners or significant others of lesbians/gays to office events?

A.    If guests at such functions are limited to the spouses of employees, and exclude opposite sex dates or companions, then the company does not have to include such guests of gay or lesbian employees.

Q.    Am I now required to offer domestic partner sick leave or health insurance benefits to gay and lesbian employees?

A.    Only if these benefits are offered to the non-spouse partners of heterosexual employees.

Note for FMLA-qualifying employers - FMLA benefits are not affected by the Fairness Ordinance in any way, e.g., an employee giving birth or adopting a child is entitled to FMLA leave regardless of his or her sexual orientation.

Q.    Can an employer assign effeminate men or masculine women to jobs that do not have direct contact with the public for fear of potential adverse response by the public?

A.    No.  Work assignments must be based upon neutral, non-discriminatory work related criteria.  Just as it is now impermissible to assign a Pentecostal female with a different hairstyle or dress, or an African-American employee to a non-public job position because of the publics prejudicial reaction, it would be likewise impermissible to make those assignments based upon sexual orientation or gender identity.

Q.    Must employers now permit men to wear earrings or make-up in the workplace?

A.    No.  The ordinance explicitly permits employers to institute and uniformly enforce an employee dress code or policy.  What is critical to the workplace appearance issue is that any employer policy is uniformly enforced.

Q.    Are individuals who allege discrimination based upon sexual orientation entitled to file a civil lawsuit in court?

A.    Only if the basis of the claim is exposure to a sexually hostile work environment pursuant to Title VII or KRS Chapter 344.  Otherwise, the local remedial process is limited to filing a charge with the HRC.

Q.    Won't the Fairness Ordinance simply lead to an explosion of additional claims against employers with yet another protected class?

A.    A recent government accounting office survey determined that within the states which provide protection based upon sexual orientation, those complaints alleging discriminatory treatment based upon sexual orientation constitute no more than 5% of the total discrimination complaints filed.

Q.    What is the scope of the Fairness Ordinance's exemption for religious organizations?

A.    Religious institutions such as churches are totally exempt from this provision.  Religious organizations operated for charitable or educations purposes which are "operated, supervised or controlled by a religious corporation, association or society" are also exempt, unless such organization receives a majority of its funding from local, state or federal government sources.

Q.    Must I have restroom and shower facilities for gay/lesbian/bisexual or transgender employees separate from those used by heterosexual employees?

A.    No.  In fact, separate facilities may only emphasize difference and increase potential harassment.  The "potty" concern is actually inappropriate sexual activity, which should already be prohibited in your workplace, regardless of the sexual orientation of any individual employees.  Every employer already has a legal duty to maintain a work environment that is free of sexually harassing or hostile activity.  The ordinance creates no new obligations.

Q.    Must an employer provide diversity training as a result of the Fairness Ordinance?

A.    No, as an explicit requirement.  However, cases under this ordinance will likely be analyzed based upon the same legal criteria as discrimination cases based upon other protected characteristics.  This means that a prudent employer will operate as if there is an affirmative defense available, the first prong of which is to demonstrate that the employer has exercised reasonable care to prevent and/or appropriately address discrimination or harassment in the workplace.  Diversity training can definitely help to establish reasonable care.

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