The City Council last week passed a broad revision of Title 11 — the portion of city code dealing with equal opportunity — that includes adding gender identity, sexual orientation and military personnel as protected classes.

The next day, opponents filed a referendum petition and have 15 days to gather 4,137 signatures to stop the ordinance from being enacted. If they gather the required number of signatures, the City Council can either repeal it or let voters decide.

The Nebraska Family Alliance, which filed the petition and says it's trained more than 260 people to collect signatures, contends the ordinance will open businesses to large fines for expressing their religious beliefs on marriage and sexuality, and focuses on fears related to allowing bathroom access based on gender identity.

Proponents say because a January 2020 Supreme Court ruling in a landmark civil rights case ensured such protections it’s important the city align its code with federal law for clarity, so the city doesn’t lose federal funds, and because spelling out such protections in city code is the right thing to do.

The new ordinance — the second time in a decade the council passed a so-called “fairness ordinance’’ to include protections for sexual orientation and gender identity — is broader than the first one and provides numerous updates to the entire code.

Opponents in 2012 acquired enough signatures to put the ordinance to a vote, but the council never did that. It also didn’t rescind the ordinance, so it’s been in limbo until now — a point emphasized by opponents.

This time around, at the center of the debate is the Lincoln Commission on Human Rights, a city agency created a year before the federal Civil Rights Act was passed in 1964, when President John F. Kennedy asked cities to form human rights councils.

The city charter authorized the creation of the commission, which is charged with investigating allegations of discrimination in housing, employment and public accommodation.

Today, there’s lots of confusion about what that means, said commission director Mindy Rush Chipman.

“A lot of the testimony in opposition (at the City Council) clarified how many misconceptions are around what the commission can do and can’t do,” she said.

For one thing, its jurisdiction reaches only as far as the city limits and specifically excludes city, county, state and federal agencies and — in the new version — clarifies that political subdivisions also are excluded.

That means the commission can’t investigate allegations related to places such as public schools, jails or within city departments or agencies, she said.

Churches generally don’t fall under public accommodation laws, and city ordinance generally exempts religious organizations, as well as private clubs not open to the public. Employers with fewer than four employees also are exempted.

In cases brought to the commission, the goal is to help both parties reach a resolution, not impose sanctions or fines, Rush Chipman said.

“We try to reach that mutually beneficial resolution from the beginning — how to preserve the relationship so both parties feel comfortable,” she said. “Our goal is to raise awareness.”

The commission is an easy, accessible way for people who feel they’ve been wronged to get answers, Rush Chipman said, without hiring a lawyer and spending money. People with employment allegations typically have to exhaust administrative avenues — such as the commission — before they can file a lawsuit, she said.

The commission has two investigators who look into complaints, and their findings are then brought to nine commissioners appointed by the mayor and approved by the City Council. If the commissioners find reasonable cause that discrimination has occurred, and the two parties can't resolve the issue, the case moves on to a public hearing with a public hearing officer.

While opponents are correct that fines can be assessed, a complaint must go through a public hearing before they can be assessed by the hearing officer, and that rarely happens.

Title 11 authorizes the city attorney to assess fines of up to $10,000 for a first offense; $25,000 for a second offense in five years and up to $50,000 for three offenses within seven years. Those fines aren't new, but the recent revisions reorganize the code so it’s clear the civil penalties apply to all three areas, not just housing, Rush Chipman said.

In the past five years, just two cases reached the point of a public hearing and neither of those resulted in fines being assessed, she said.

In the past 11 years, the number of complaints filed with the commission ranged from 99 in 2015 to 38 last year. 

Of the 658 complaints filed since 2011, 44% allege employment discrimination, 32% housing and 4% public accommodation.

Allegations of discrimination based on disability are the most frequently reported in seven of the last 10 years. Racial discrimination was the most reported one year and discrimination based on national origin was most reported in two of those years.

Most often investigators find that no discrimination occurred, Rush Chipman said. Last year, “reasonable cause” was found in just three cases.

For there to be discrimination in a public accommodation, for instance, the discrimination must occur in a place that’s open to the public, that’s not exempted, and then there has to be a denial of services, she said.

Most often, the two parties are able to settle the complaint, even if there’s a finding of discrimination. It isn’t always intentional, Rush Chipman said, and the resolution could include training or education.

“Reaching that mutually beneficial agreement is the goal,” she said.