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This division shall neither add to, nor detract from, any civil remedies now available to persons complaining of discrimination under this division.
(1964 Code, § 13A-15) (Ord. 6205, § 5, passed 11-24-1968; Ord. 13981, § 1, passed 10-26-1999; Ord. 14344, § 1, passed 9-26-2000; Ord. 14832, § 2, passed 10-15-2001; Ord. 19374-09-2010, § 1 (Exh. A), passed 9-28-2010, eff. 10-1-2010; Ord. 24023-01-2020, § 1 (Exh. A), passed 2-2-2020)
Any person violating any provision of this division shall be deemed guilty of a misdemeanor and upon conviction shall be punished as provided in § 1-6 of this code.
(1964 Code, § 13A-16) (Ord. 6205, § 7, passed 11-24-1968; Ord. 13981, § 1, passed 10-26-1999; Ord. 14344, § 1, passed 9-26-2000; Ord. 14832, § 2, passed 10-15-2001; Ord. 19374-09-2010, § 1 (Exh. A), passed 9-28-2010, eff. 10-1-2010; Ord. 24023-01-2020, § 1 (Exh. A), passed 2-2-2020)
(a) Pursuant to the authority stated in Texas Labor Code § 21.151, these ordinances related to fair employment are hereby adopted.
(b) It is hereby declared to be the policy of the city to bring about, through fair, orderly and lawful procedures, the opportunity for each person to obtain employment without regard to his or her race, color, religion, national origin, sex, disability, age, sexual orientation, transgender, gender identity or gender expression.
(c) It is further declared that this policy is grounded upon a recognition of the right of individual to work to earn wages and obtain a share of the wealth of this city through gainful employment of his or her own choice without regard to race, color, religion, national origin, sex, disability, age, sexual orientation, transgender, gender identity or gender expression; and further, that the denial of such rights through considerations based upon race, color, religion, national origin, sex, disability, age, sexual orientation, transgender, gender identity or gender expression is detrimental to the health, safety and welfare of the inhabitants of the city and constitutes an unjust denial or deprivation of such inalienable right which is within the power and the proper responsibility of government to prevent.
(Ord. 24023-01-2020, § 1 (Exh. A), passed 2-2-2020)
Whenever the following terms are used in this division, they shall have the meanings respectively ascribed to them in this section.
AGE. In the context of unlawful discrimination, the prohibitions in this division shall be limited to individuals who are at least 40 years of age.
AGENCY. The diversity and inclusion department’s staff supervised by its director.
AUXILIARY AIDS AND SERVICES.
(1) Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(2) Qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
COMMISSION. The Fort Worth human relations commission.
COVERED ENTITY. An employer, employment agency, labor organization or joint labor-management committee.
DIRECTOR. The individual designated by the city manager as the director of the diversity and inclusion department, or the director’s designee.
DIRECT THREAT. A significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.
DISABILITY. With respect to an individual:
(1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(2) A record of such an impairment; or
(3) Being regarded as having such an impairment.
EMPLOYEE. An individual employed by an employer.
EMPLOYER.
(1) Generally. In general, the term EMPLOYER means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person.
(2) Exceptions. The term EMPLOYER does not include:
a. The United States, a corporation wholly owned by the government of the United States or an Indian tribe; or
b. A bona fide private membership club (other than a labor organization) that is exempt from taxation under § 501(c) of Title 26.
GENDER EXPRESSION. A person’s external characteristics and behaviors including, but not limited to, dress, grooming, mannerisms, speech patterns and social interactions that are socially identified with a particular gender.
GENDER IDENTITY. A person’s innate, deeply felt sense of gender, which may or may not correspond to the person’s body or sex listed on their original birth certificate.
ILLEGAL USE OF DRUGS.
(1) Generally. 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.
(2) Drugs. The term DRUG means a controlled substance, as defined in schedules I through V of § 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 42 U.S.C. § 2000e, or its successor statute.
QUALIFIED INDIVIDUAL WITH A DISABILITY. 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 division, 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 job.
REASONABLE ACCOMMODATION. May include:
(1) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(2) 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.
SEXUAL ORIENTATION. Heterosexuality, homosexuality or bisexuality or being identified with such orientation.
TRANSGENDER. A person who experiences and/or expresses their gender differently from conventional or cultural expectations including, but not limited to, those who express a gender that does not match the sex listed on their original birth certificate or who physically alter their sex.
UNDUE HARDSHIP.
(1) In general the term
UNDUE HARDSHIP means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subsection (2) of this definition.
(2) Factors to be considered in determining whether an accommodation would impose an undue hardship on a covered entity include:
a. The nature and cost of the accommodation needed under this chapter;
b. 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;
c. 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
d. 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.
(1964 Code, § 13A-21) (Ord. 7278, § 1, passed 12-22-1975; Ord. 7400, § 1, passed 8-9-1976; Ord. 12570, § 1, passed 7-9-1996; Ord. 13981, § 1, passed 10-26-1999; Ord. 14344, § 1, passed 9-26-2000; Ord. 16032, § 1, passed 7-13-2004; Ord. 18909-11-2009, § 1, passed 11-10-2009; Ord. 19374-09-2010, § 1 (Exh. A), passed 9-28-2010, eff. 10-1-2010; Ord. 24023-01-2020, § 1 (Exh. A), passed 2-2-2020)
(a) It shall be unlawful for any covered entity to discriminate against any individual because of age, race, color, religion, sex, disability, national origin, sexual orientation, transgender, gender identity or gender expression 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) 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, job training, and other terms, conditions and privileges of employment.
(c) As used in this section, the term
DISCRIMINATE includes:
(1) Limiting, segregating or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;
(2) Participating in a contractual or other arrangement or relationship that has the effect of subjecting 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);
(3) Utilizing standards, criteria or methods of administration:
a. That have the effect of discrimination on the basis of disability; or
b. That perpetuate the discrimination of others who are subject to common administrative control.
(4) Excluding, or otherwise denying, equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
(5) a. 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
b. Denying employment opportunities to a job 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.
(6) 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 be job-related for the position in question and is consistent with business necessity; and
(7) Failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job 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).
(d) The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries.
(e) PROHIBITED EXAMINATION OR INQUIRY means except as provided in subsection (h)(2) below, a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.
(f) Acceptable inquiry. A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.
(g) 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 in 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.
(3) The results of such examination are used only in accordance with this subchapter.
(h) 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 disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-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 worksite. A covered entity may make inquiries into the ability of an employee to perform job-related functions.
(3) Requirement. Information obtained under subsection (h)(2) above regarding the medical condition or history of any employee are subject to the requirements of subsections (g)(2) and (g)(3) above.
(i) 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 disability has been shown to be job-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 in 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. Applications. 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 subsection (i)(3)a. above, 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 diseases and the modes of transmissibility published by the secretary of health and human services.
(j) Illegal use of drugs and alcohol.
(1) Qualified individual with a disability. For purposes of this division, the term QUALIFIED INDIVIDUAL WITH A DISABILITY shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
(2) Rules of construction. Nothing in subsection (j)(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 in 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 in such use, but is not engaging in 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 but not limited to drug testing, designed to ensure that an individual described in subsection (j)(2)a. or (j)(2)b. above 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 in 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 job performance and behavior 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:
1. 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 in sensitive positions in 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);
2. 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 in sensitive positions in 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 nuclear regulatory commission); and
3. 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 in sensitive positions in 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 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 job applicants or employees or making employment decisions based on such test results.
(k) Bidding on contracts with the city; 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 in 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.
(l) Notice requirement. Any employer, general contractor, labor organization or employment agency subject to the provisions of this division shall post, in a conspicuous place available to all employees and applicants for employment, notices apprising employees and applicants of this division.
(1964 Code, § 13A-22) (Ord. 7278, § 2, passed 12-22-1975; Ord. 7400, § 1, passed 8-9-1976; Ord. 12570, § 1, passed 7-9-1996; Ord. 13981, § 1, passed 10-26-1999; Ord. 14344, § 1, passed 9-26-2000; Ord. 18909-11-2009, § 1, passed 11-10-2009; Ord. 19374-09-2010, § 1 (Exh. A), passed 9-28-2010, eff. 10-1-2010; Ord. 24023-01-2020, § 1 (Exh. A), passed 2-2-2020)
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