Fayetteville Readies for Vote on Non-Discrimination Ordinance

The civil rights ordinance that has Fayetteville on fire goes up for citywide vote on Dec. 9 and, until that time, the ordinance, a beacon of hope for some and a source of handwringing for others, promises to stir the heart of the region’s largest and most progressive city.

Approved Aug. 20, at the end of a marathon public meeting, those in opposition to the law rallied and, by Sept. 20, had enough valid signatures, over 4,300 of them, to force a ballot question. 

At the molten center of the upcoming election is an ordinance that, in addition to the standard classes of age, race, religion and gender, protects socioeconomic background, gender identity, gender expression and sexual orientation from discrimination in housing, employment and public accommodations. 

Supporters say the law, known as 119 due to its chapter listing in the city code, is necessary if Fayetteville is to embrace equality — an equality that includes lesbian, gay, bisexual and transgender, or LGBT — and attract the best and brightest to come to Fayetteville for education and employment. Detractors, on the other hand, say the proposed law is open-ended, bad for business, and that in total, it’s a sloppy piece of legislation.

The Fayetteville debate takes place as more than 200 cities across the nation have non-discrimination ordinances on their books. While the usual trendsetters — San Francisco, New York, Seattle, Austin and Chicago — are on the list, towns like Charleston, West Virginia, and Shreveport, Louisiana, also have ordinances.

Despite opposition, the legislation arrives in a favorable climate, both nationally and locally. Bans on same-sex marriage across the country are being overturned. The region’s two most important employers — Wal-Mart Stores Inc. and the University of Arkansas — include sexual orientation in their non-discrimination policies. And Hillshire Brands Co., the premier packaged meats producer recently acquired by Tyson Foods Inc. for $8.5 billion, had a float in this year’s Chicago Pride parade, one of the oldest and largest gay pride parades in the world.

While LGBT is not officially recognized as a federally protected class, the Equal Employment Opportunity Commission, which enforces employment discrimination laws, has increasingly recognized LGBT as claimants. In 2012, for example, anti-trans bias was considered sex discrimination under Title VII of the Civil Rights Act in the landmark case titled Macy v. Holder. And in September, the EEOC filed two suits, one out of Florida and one out of Michigan, involving transgender plaintiffs.

Among those who seek to repeal 119, there are some who point to the EEOC, saying the LGBT community now has a voice at the federal level and a local law is simply overkill. But supporters of 119 say not so fast. Even with the EEOC’s increasing role, equality, they say, should begin at home, not in Washington, D.C.

Fayetteville voters should expect a lively campaign, as two Ballot Question Committees, Repeal 119 in opposition and Keep Fayetteville Fair in support, have registered with the Arkansas State Ethics Commission and are authorized to raise and expend funds.

Mayor Lioneld Jordan, an impassioned supporter of the ordinance, said he hasn’t seen this kind of civic energy since the smoking ban, which, after a bruising ground war, went into effect in 2004. A decade later, Fayetteville is again poised to make a momentous decision, and Jordan is confident that the civil rights ordinance, like the smoking ban, will be upheld by voters.

“What I think is that the people of this city get it right, and they’ll get it right this time,” he said.

 

Embattled Ordinance

A big concern among those seeking to repeal the law is that violations, if they are not settled through mediation, are referred to the city prosecutor’s office. And according to Fayetteville city attorney Kit Williams, documents associated with a claim could be subject to requests under the Arkansas Freedom of Information Act, meaning case details could wind up in newspapers, on the Internet and on the evening news.

For a business owner, that’s terrifying — especially if a claim turns out not to have merit. That scenario, just as much or more than anything else, has plenty of business owners ready to repeal the ordinance, said attorney Travis Story, who co-founded Repeal 119 and whose office in Fayetteville, Story Law Form PLLC, is ground zero for the repeal movement.

“When you have uncertainty in business, you limit the ability to grow,” he said, referring to the questions surrounding the ordinance. “Uncertainty kills business.”

Civil rights attorney Kim Coats, a member of the city’s civil rights advisory panel and an expert on the EEOC, wrote a memo detailing, among other things, potential concerns in the enforcement procedure outlined in the ordinance, and shared the memo with Jordan and the panel.

Coats outlined eight bullet points worth of concerns that all seemingly pointed to the same thing — the ordinance lacks the extensive network of safeguards and regulations enshrined in the EEOC. And in this month’s Washington County Bar Association newsletter, a memo went out to the bar’s members saying Fayetteville would essentially farm out enforcement of the ordinance to local lawyers with experience in civil rights complaints.

“He [Fayetteville city attorney Kit Williams] said he will probably be contacted by persons alleging some discrimination that would potentially be better handled by a referral to a private attorney who works with the civil rights area and represents plaintiffs rather than defendants,” the newsletter reads.

If the reports compiled by ordinance cities like Bloomington, Indiana, and Iowa City, Iowa, are any indication, Fayetteville shouldn’t expect any bombshells, at least from LGBT. Five complaints over sexual orientation or gender identity have been filed in Bloomington since 2007, and last year in Iowa City, seven cases regarding sexual orientation or gender identity were filed, as compared to 21 regarding race and 15 regarding disability.

When the City Council approved the ordinance, the vote was not unanimous. Aldermen Justin Tennant and Martin Schoppmeyer, who is the founder and superintendent of Haas Hall Academy in Fayetteville, opposed the measure.

“I voted against 119 because it’s a poorly written ordinance devoid of clear, concise procedural processes, enforcement procedures and definitions,” he said. “I don’t subscribe to the theory of ‘We will work it out as we go along.’ The citizens of Fayetteville deserve better.” 

Meanwhile, alderman Matthew Petty, the sponsor of the ordinance, said business owners have nothing to fear.

“Businesses shouldn’t be concerned unless they are discriminating,” Petty said. “Any successful business documents their hiring and firing decisions and that is enough to successfully defend against predatory allegations.”

 

National, Local Campaign

Wording for the civil rights ordinance was provided to Petty by the Human Rights Campaign, a D.C.-based organization with offices across the country. City officials communicated with the HRC on multiple occasions as the ordinance was being prepared for presentation to the full council.

The Fayetteville ordinance is before the public at a time when the HRC is implementing its Project One America, a comprehensive campaign to expand LGBT equality in Arkansas, Mississippi and Alabama.

Combined, the HRC and the HRC Foundation had total assets of about $48.8 million at the end of its 2013 tax year, and the two entities comprise the largest organization of its kind in the United States. Founded in 1980, the HRC touts 1.5 million members and is active from the local level all the way up to direct lobbying on Capitol Hill. HRC also enjoys broad-ranging support in corporate America, and sponsors include Apple, The Coca Cola Co., Deloitte, Google, The Hershey Co., Lincoln Financial Group and PepsiCo.

One of the chief advocates for Repeal 119 is Duncan Campbell, a Fayetteville-based international minister and missionary with deep contacts in the faith-based community.

He said he got involved when word first started spreading that the ordinance was up for consideration. He said he didn’t know what to expect before arriving at City Hall. But council chambers were packed, and there were plenty of people there who felt the same way he did. Over the course of the public discussion, people came together for a common purpose, and organically, Repeal 119 was formed.

“We found out the grassroots were bigger than we thought,” Campbell said. “People just rose up and said, ‘No. This is not us.’”

 Campbell was instrumental in collecting the 5,714 signatures, of which 4,313 were certified, that forced the ballot question. Out on the signature trail, he said he heard about business rights, religious rights and privacy rights, and how the ordinance tramples all of them.

Campbell said the fact that three candidates — John La Tour, Josh Crawford and Paul Phaneuf — are running for Fayetteville City Council on an anti-ordinance platform is proof that the repeal movement is deep and broad.

“I’m confident that we’ll win and the reason why is that the people of Fayetteville don’t like this law,” Campbell said.

On the other side is Keep Fayetteville Fair, founded by Anne Shelley, executive director of the NWA Rape Crisis Center and a member of the mayor’s advisory panel. Shelley said the supporters of 119 are rallying their forces and plan on fighting tooth-and-nail up until Election Day.

“While we are not shouting from the rooftops we are working from the ground up,” she said.

The list of those who signed the petition to repeal the ordinance was released by several individuals and outlets, presumably as an act of retribution and shaming. Shelley said she and Keep Fayetteville Fair want nothing do with the list. She said she wants to keep the focus on the ordinance’s positive aspects.

“We lead the way in what’s healthy for a community as a whole,” she said. “Fayetteville has always led the way in Arkansas.” 

Editor’s Note: In the event of litigation regarding ballot language and a resultant delay, the citywide vote could be moved to Jan. 13.