Sec. 132.1. All Contracts and Property Contracts to Include Nondiscrimination Provisions.
Sec. 132.2. Definitions.
Sec. 132.3. Nondiscrimination Provisions.
Sec. 132.4. Human Rights Commission Empowered.
Sec. 132.5. Funding.
Sec. 132.6. Nonapplicability, Exceptions and Waivers.
Sec. 132.7. Severability.
*Editor’s Note:
Former Administrative Code Chapter 12C (“Nondiscrimination in Property Contracts”) was redesignated as Labor and Employment Code Article 132 by Ord. 221-23, File No. 230835, approved November 3, 2023, effective December 4, 2023, and operative January 4, 2024.
(a) All contracting agencies of the City, or any department thereof, acting for or on behalf of the City and County, shall include in all contracts and property contracts a provision obligating the contractor not to discriminate on the basis of the fact or perception of that person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome, HIV status (AIDS/HIV status), weight, height, association with members of classes protected under this Article or in retaliation for opposition to any practices forbidden under this Article against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations, operated by that contractor, and shall require such contractor to include a similar provision in all subcontracts.
(b) The requirements of this Article shall apply to (i) any of a contractor’s operations within San Francisco; (ii) a contractor’s operations on real property outside of San Francisco owned by the City or which the City has a right to occupy if the contractor’s presence at that location is connected to as contract or property contract with the City; (iii) where the work is being performed by a contractor for the City within the United States; and (iv) any of a contractor’s operations elsewhere within the United States.
(Added as Administrative Code Sec. 12C.1; amended by Ord. 489-86, App. 12/18/86; Ord. 433-94, App. 12/30/94; Ord. 440-96, App. 11/8/96; Ord. 481-96, App. 12/20/96; Ord. 201-97, App. 5/27/97; Ord. 286-97, App. 7/18/97; Ord. 255-99, File No. 991146, App. 10/8/99; Ord. 101-00, File No. 000476, App. 5/26/2000; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
As used in this Article 132, the term:
“Age” for the purpose of membership refers to the age of any person who has attained the age of 18 years, except for bona fide senior citizen organizations.
“City” shall mean the City and County of San Francisco.
“Commission” shall mean the Human Rights Commission of the City and County of San Francisco.
“Contract” shall mean an agreement for public works or improvements to be performed, or grants to be provided, or for goods or services to be purchased, at the expense of the City and County or to be paid out of moneys deposited in the treasury or out of trust moneys under the control or collected by the City and County, and does not include property contracts, agreements entered into pursuant to settlement of legal proceedings, or contracts for a cumulative amount of $5,000 or less per vendor in each fiscal year.
“Contractor” means any person or persons, firm, partnership, corporation, or combination thereof, who enters into a contract or property contract with a department head or officer empowered by law to enter into contracts or property contracts on the part of the City and County.
“Director” shall mean the Director of the Human Rights Commission.
“Disability” is a physical or mental impairment which limits one or more major life activities, and includes being regarded as having such an impairment, or having a record of such an impairment.
“Domestic partner” shall mean any person who has a currently registered domestic partnership with a governmental body pursuant to State or local law authorizing such registration.
“Gender Expression” shall mean the outward expression of one’s gender identity, which may include, but is not limited to, clothing, hair styles, gestures, make up, or behavior which may or may not conform to societal expectations typically related to traits associated with a person’s gender identity, sexual orientation, or assigned sex at birth.
“Gender identity” shall mean how a person self-identifies their gender, or their internal understanding of their gender. A person’s gender identity may or may not correspond with social norms or stereotypes related to the sex they were assigned at birth. There are many terms related to gender with which a person may identify, including but not limited to: agender; androgynous; bigender; cisgender; cisgender man; cisgender woman; gender fluid; gender non-conforming; gender-expansive; genderqueer, non-binary, pangender, Two-Spirit, transgender, trans, transgender man, transgender woman, masculine, and feminine. One’s gender identity may be described through any number of ever-expanding terms or definitions, and one’s gender identity may be subject to change by the individual.
“Property contract” shall mean a written agreement for the exclusive use or occupancy of real property for a term exceeding 29 days in any calendar year, whether by singular or cumulative instrument, (i) for the operation or use by others of real property owned or controlled by the City for the operation of a business, social, or other establishment or organization, including leases, concessions, franchises and easements, or (ii) for the City’s use or occupancy of real property owned by others, including leases, concessions, franchises and easements. For the purposes of this Article, “exclusive use” means the right to use or occupy real property to the exclusion of others, other than the rights reserved by the fee owner. “Property contract” shall not include a revocable at-will use or encroachment permit for the use of or encroachment on City property regardless of the ultimate duration of such permit, except that “property contract” shall include such permits granted to a private entity for the use of City property for the purpose of a for-profit activity. “Property contract” shall also not include street excavation, street construction or street use permits, agreements for the use of City right-of-way where a contracting utility has the power of eminent domain, or agreements governing the use of City property which constitutes a public forum for activities that are primarily for the purpose of espousing or advocating causes or ideas and that are generally recognized as protected by the First Amendment to the U.S. Constitution, or which are primarily recreational in nature.
“Qualified disabled employee” shall mean a person able to perform the essential functions of a job with reasonable accommodation.
“Sex” shall mean one’s anatomical, physiological, genetic, or physical attributes, and the variation in these attributes that may or may not indicate male, female, or a different sex such as intersex. These attributes may include but are not limited to both primary and secondary sex characteristics, including internal and external reproductive organs, hormone levels, hormone receptors, chromosomes and genes, all of which may change over time. A person’s sex may or may not align with their gender identity.
“Sexual orientation” shall mean one’s physical, emotional, romantic, or sexual attraction to people of a particular gender or multiple genders, or lack thereof, and is distinct from their gender expression or gender identity. A person’s sexual orientation may be identified by terms including, but not limited to, asexual, bisexual, gay, lesbian, heterosexual, homosexual, pansexual, and queer.
“Subcontract” shall mean an agreement to (i) provide goods and/or services, including construction labor, materials or equipment, to a contractor, if such goods or services are procured or used in the fulfillment of the contractor’s obligations arising from a contract with the City, (ii) to transfer the right to occupy or use all or a portion of a real property interest subject to a property contract to a subcontractor and pursuant to which the contractor remains obligated under the property contract.
“Subcontractor” means any person or persons, firm, partnership, corporation or any combination thereof, who enters into a subcontract with a contractor. Such term shall include any person or entity who enters into an agreement with any subcontractor for the performance of 10 percent or more of any subcontract.
(Added as Administrative Code Sec. 12C.2; amended by Ord. 489-86, App. 12/18/86; Ord. 433-94, App. 12/30/94; Ord. 440-96, App. 11/8/96; Ord. 481-96, App. 12/20/96; Ord. 201-97, App. 5/27/97; Ord. 250-22, File No. 220702, App. 12/16/2022, Eff. 1/16/2022; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
Every contract and property contract entered into by any agency of the City shall incorporate by reference and require contractor to comply with the nondiscrimination provisions of Section 132.3. In addition, all contractors must incorporate by reference in all subcontracts and require subcontractors to comply with the requirements of this Section 132.3, and failure to do so shall constitute a material breach of contract.
In the performance of a contract, the contractor or subcontractor shall agree as follows:
(a) The contractor or subcontractor will not discriminate against any person seeking accommodations, advantages, facilities, privileges, services, or membership in the business, social or other establishment or organization operated by the contractor or subcontractor on the basis of the fact or perception of that person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, disability, AIDS/HIV status, weight, height, association with members of classes protected under this Article or in retaliation for opposition to any practices forbidden under this Article. Services provided by contractor or subcontractor to the public shall be provided regardless of disability of persons otherwise entitled to or qualified for such services.
(b) Should the contractor or subcontractor operate as a membership organization, the contractor or subcontractor will permit access to its membership records, rules, regulations and other pertinent data, by the City’s awarding authority, or the Commission, for the purpose of investigating to ascertain compliance with the nondiscrimination provisions of this Article, and on request provide evidence that the contractor or subcontractor has complied or will comply with the nondiscrimination provisions of this Article. The Director shall be the final arbiter of a contractor’s or subcontractor’s compliance or substantial compliance with this Article and the Director’s determination shall not be appealable to the Commission.
(c) A contractor or subcontractor shall be deemed to have breached the nondiscrimination provisions of this Article upon:
(1) A finding by the Director or such other official who may be designated by the Commission, that contractor or subcontractor has wilfully violated such nondiscrimination provisions.
(2) Upon such finding by the Director or other official designated by the Commission, the awarding authority shall notify the contractor or subcontractor that unless the contractor or subcontractor demonstrates to the satisfaction of the Director or other official designated by the Commission within such reasonable period as the Commission shall determine, that the violation has been corrected, action will be taken as set forth in Section 132.3(d) and/or Section 132.3(g).
(3) The Commission shall, within 10 days of the date of issuance of any findings by the Director or other official designated by the Commission for the enforcement of this Article, mail to any person or persons affected by said finding, a copy of said finding, together with written notice of the right to appeal such finding. Notice of appeal must be filed in writing with the Chairperson of the Commission within 20 days of the date of mailing said copy and notice.
(4) For purposes of appeal proceedings under this Section, a quorum shall consist of eight members of the Commission. The vote of the majority of the full Commission shall be necessary to affirm, reverse or modify such decisions, order or other action rendered hereunder. Should a member of the Commission be designated under Section 132.3(c)(1) of this Article, that Commissioner may not participate in an appeal under this Section except as a witness.
(5) The presiding officer of the Commission shall have the power to administer oaths to witnesses in appeals before the Commission under this Section. In the event that any person shall fail or refuse to appear as a witness in any such proceeding after being requested to do so, and if it shall appear to the Commission that his or her testimony, or books, records, documents or other things under his or her control are material and relevant as evidence in the matter under consideration by the Commission in the proceeding, the presiding officer of the Commission may subpoena such person, requiring his or her presence at the proceeding and requiring him or her to bring such books, records, documents or other things under his or her control.
(6) All appeals to the Commission shall be open to the public. Records and minutes shall be kept of such proceedings and shall be open to public inspection. Upon reaching a decision in any appeal, the Commission shall give written notice thereof to the Director or other official designated by the Commission, and the appellant or appellants. The decision of the Commission shall be final unless within 15 days of the filing and service of written notice thereof appropriate legal proceedings are filed in a court of competent jurisdiction by any party to the contract, property contract or subcontract.
(7) If any contractor or subcontractor shall fail to appear at an appeal proceeding of the Commission after having been given written notice to appear, such failure to appear shall be grounds for termination of the contract, property contract or subcontract and such contractor or subcontractor shall be deemed to have forfeited all rights, benefits and privileges thereunder.
(8) The Commission shall promulgate rules and regulations for the implementation of the nondiscrimination provisions of this Article.
(d) A breach of the nondiscrimination provisions in the performance of a contract, property contract or subcontract shall be deemed by the City to be a material breach of contract and the basis for determination by the awarding authority that the contractor or subcontractor is an irresponsible contractor or subcontractor as to all future contracts or property contracts for which such contractor or subcontractor may submit bids. Such contractor or subcontractor shall not, for a period of up to two years thereafter, or until it shall establish and carry out a program in conformity with the nondiscrimination provisions of this Article, be allowed to act as a contractor or subcontractor under any contract or property contract.
(e) Nothing contained in this Article shall be construed in any manner so as to prevent the City from pursuing any other remedies that may be available at law, equity or under any contract or property contract.
(f) The contractor or subcontractor will meet the following standards for compliance:
(1) If the contractor or subcontractor has been held to be irresponsible under Section 132.3(d) hereof, the contractor or subcontractor shall furnish evidence that it has established and is carrying out a program in conformity with the nondiscrimination provisions of this Article.
(2) The contractor or subcontractor may be required to file with the Commission a basic compliance report. Wilful false statements made in such reports shall be punishable as provided by law. No contractor or subcontractor shall be held in noncompliance for not filing such a report with the Commission unless it has been specifically required to do so in writing by the Commission.
(g) The awarding authority may deduct from the amount payable to the contractor or subcontractor by the City under any contract or property contract subject to this Article, or may impose upon the contractor or subcontractor, a penalty of $50 for each person for each calendar day during which such person was discriminated against in violation of the provisions of this Article. In addition to any other penalties provided for the violation of the nondiscrimination provisions of this Article or for the failure of any contractor or subcontractor to abide by the rules and regulations of the Commission, the contract, property contract or subcontract may be terminated or suspended, in whole or in part, by the awarding authority upon the basis of a finding as set forth in Section 132.3(d) that the contractor or subcontractor has discriminated contrary to the provisions of this Article, and all moneys due or to become due hereunder may be forfeited to, and retained by, the City.
(Added as Administrative Code Sec. 12C.3; amended by Ord. 489-86, App. 12/18/86; Ord. 433-94, App. 12/30/94; Ord. 201-97, App. 5/27/97; Ord. 286-97, App. 7/18/97; Ord. 255-99, File No. 991146, App. 10/8/99; Ord. 101-00, File No. 000476, App. 5/26/2000; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
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