ARTICLE III. CIVIL RIGHTS*

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*   Editors Note: Ord. No. 4616, § 3, adopted Feb. 7, 1977, specifically amended the Code by repealing former art. III, § 7-2--7-4. The article, which had pertained to the human relations commission, had been derived from Ord. No. 4169, § 2, adopted April 15, 1974.

   Section 5 of Ord. No. 4616 redesignated former art. IV as art. III, as herein set out.

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Sec. 17-11. Definitions.

In this chapter, unless the context otherwise requires:

   (a)   Age means at least eighteen years of age except:

   (1)   Where state law provides for a greater minimum or maximum legal age

   (2)   In section 17-12(b) which shall be deemed to protect any person who is at least forty (40) years of age.

   (b)   Discriminate or discrimination means to make, directly or indirectly, any distinction with respect to any person or persons based on race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status or marital status.

   (c)   Disability, with respect to an individual, means:

   (1)   A physical or mental impairment that substantially limits one or more of the major life activities of such individual, and specifically includes but is not limited to an individual who has HIV/AIDS;

   (2)   A record of such an impairment; or

   (3)   Being regarded as having such an impairment; but disability does not include the current illegal use of or addiction to a controlled substance (as defined in the controlled substances act, 21 U.S.C. § 801 et seq.) or the current use of alcohol that prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to the property or the safety of others.

Discrimination on the basis of disability shall be interpreted in a manner consistent with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the federal regulations promulgated thereunder, and judicial decisions construing them.

   (d)   Educational institution means any private educational institution located or operating in the City of Tucson which provides educational services including an academy, college, university, elementary or secondary school, kindergarten, extension course, nursery school system, and a business nursing, professional, secretarial, technical or vocational school.

   (e)   Employer, except as otherwise provided, means a person who has one (1) or more employees, not to exceed one hundred (100) employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, and any agent of such a person; but such term does not include an Indian tribe, the City of Tucson, or a bona fide private membership club (other than a labor organization) which is exempt from federal taxation under section 501(c) of title 26, United States Code. The jurisdictional maximum limit of one hundred (100) employees shall not apply to protected classes who do not have remedies available under either A.R.S. § 41-1401 et seq., or 42 U.S.C. § 2000e et seq.

   (f)   Employment agency means and includes both public and private employment agencies and any person having an office regularly undertaking, with or without compensation, to procure, recruit, refer or place employees.

   (g)   Familial status means the state of one or more minor children under the age of eighteen (18) being domiciled with:

   (1)   A parent or another person having legal custody of such individual or individuals;

   (2)   The designee of such parent or other person having custody, with the written permission of such parent or other person; or

   (3)   A foster parent or other person with whom a minor child under the age of eighteen (18) is placed by court order.

The protections afforded against discrimination on the basis of family status also apply to any person who is in the process of securing legal custody of a minor child.

   (h)   Gender identity means an individual's various attributes as they are understood to be masculine and/or feminine and shall be broadly interpreted to include pre- and post-operative transsexuals, as well as other persons who are, or are perceived to be, transgendered.

   (i)   Labor organization means and includes any organization or labor union, craft union, or such organization, conducting a hiring hall which engages in the hiring of employees, or any voluntary unincorporated association designed to further the cause of the rights of union labor, which is constituted for the purpose in whole or in part of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment or apprenticeships or applications for apprenticeships, or for other mutual aid or protection in connection with employment, including apprentice jobs or application for apprenticeship.

   (j)   Marital status means the state of being married, separated, or unmarried as defined by state law. The term "unmarried" includes persons who are single, engaged, divorced, or widowed.

   (k)   Person means and includes one or more individuals, partnerships, associations or corporations, legal representatives, trustees, receivers, or other organized groups of persons.

   (l)   Reserved.

   (m)   Place of public accommodation means facilities, establishments, accommodations, services, commodities or use offered to or enjoyed by the general public, including but not limited to:

   (1)   Hotels, motels, trailer courts and boardinghouses, which shall include any establishments offering lodging to transient guests for compensation.

   (2)   Restaurants, which shall include lunch counters, coffee shops, lunchrooms, luncheonettes, cafes, cafeterias, tearooms, snack bars or stands, mobile food service facilities, grills, sandwich shops, supper clubs, soft drink fountains, ice cream parlors or stands, and other places which offer food, ice cream or soft drink beverages for purchase and consumption on or off the premises.

   (3)   Taverns, which shall include bars, barrooms, saloons, roadhouses and like establishments, wherein spirituous or malt liquors or wines are offered for sale for consumption on or off the premises.

   (4)   Theaters, which shall include places, whether indoors or out-of-doors, at which any theatrical performance, moving picture show, musical concert or recital, dramatic reading or monologue, circus, carnival or other like entertainment or amusement is offered.

   (5)   Retail establishments, which shall include retail stores, garages, automobile and gasoline service stations, and other like establishments serving the public.

   (6)   Places of public amusement and recreation, which shall include bowling alleys, billiard halls and poolrooms, dance halls, race courses, shooting galleries, sports arenas or fields, gymnasiums, exhibitions, skating rinks and other like establishments.

   (7)   Educational facilities, which shall include institutions defined in paragraph (d) of this section.

   (8)   Public conveyances, which shall include all transportation facilities operated on land, air or water as well as the stations and terminals thereof.

   (9)   Funeral parlors and places of burial, including any cemetery, mausoleum, crypt, or any establishment for the embalming, processing or interment of corpses.

   (n)   Protected class means each classification for which discrimination is prohibited in this chapter: race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status and marital status.

   (o)   Race includes ancestry, color, ethnic group identification, and ethnic background. “Race” is inclusive of hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race. For purposes of this subsection, “protective hairstyle” includes such hairstyles as afros, braids, locks and twists.

   (p)   Religion includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he/she is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

   (q)   Religious organization means a religious corporation, association or society: or a school, college, university, or other educational institution or institution of learning if the institution is in whole or substantial part controlled, managed, owned, or supported by a religious corporation, association or society; or the curriculum of the institution is directed toward the propagation of a religion.

   (r)   Sex shall include, but is not limited to, discrimination because of or on the basis of pregnancy, childbirth or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

   (s)   Sexual orientation means an individual’s heterosexuality, homosexuality, or bisexuality, whether the orientation is real or perceived.

(Ord. No. 4169, § 2, 4-15-74; Ord. No. 4616, § 5, 2-7-77; Ord. No. 6461, § 1, 7-7-86; Ord. No. 6947, § 2, 5-16-88; Ord. No. 8307, § 2, 6-13-94; Ord. No. 9199, § 3, 2-1-99; Ord. No. 10375, § 1, 2-21-07; Ord. No. 11829, § 1, 4-20-21)

Sec. 17-12. Prohibited acts.

It is a violation of this article:

   (a)   For any owner, operator, lessee, manager, agent or employee of any place of public accommodation to discriminate against any person, or directly or indirectly display, circulate, publicize or mail any advertisement, notice or communication which states or implies that any facility or service shall be refused or restricted because of race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status or marital status, or that any person, because of race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status or marital status, would be unwelcome, objectionable, unacceptable, undesirable or not solicited.

   (b)   For an employer, because of the race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status or marital status to refuse to hire or employ any person or to bar or to discharge from employment such person, or to discriminate against such person in compensation or in terms, conditions or privileges of employment.

   (c)   For a labor organization, because of race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status or marital status to exclude, expel, limit or restrict from its membership such person, or to provide only second class or segregated membership, or to discriminate in any manner against any of its members or against any employer or any person employed by an employer.

   (d)   For any employer or employment agency to print or circulate, or cause to be printed or circulated, any publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status or marital status or expresses any intent to make any such limitation, specification or discrimination.

   (e)   For any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he/she has opposed in a lawful manner any practices forbidden under this chapter, or because he/she has filed a complaint, testified or assisted in any proceeding under this chapter.

   (f)   For any person to cause or attempt to cause an employer to discriminate against an individual in violation of this chapter.

   (g)   For any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.

   (h)   For any person to discriminate in places of public accommodation, employment or housing against any person, because that person has made a complaint, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this chapter.

   (i)   For any person subject to this article to fail to post notices, to maintain records, or to supply documents and information requested by the Office of Equal Opportunity Programs in connection with a matter under investigation.

(Ord. No. 4169, § 2, 4-15-74; Ord. No. 4616, § 5, 2-7-77; Ord. No. 6947, § 2, 5-16-88; Ord. No. 9199, § 3, 2-1-99; Ord. No. 10375, § 2, 2-21-07)

Sec. 17-13. Exclusion.

   (a)   This article shall not be applicable to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which preferential treatment is given to any individual because he/she is a Native American living on or near a reservation.

   (b)   This article shall not be applicable to any establishment operated by a bona fide private club not conducted for the purpose of evading this article, when the accommodations, advantages, facilities and services are restricted to members of such club and their guests; nor to any bona fide social, fraternal, public educational, civic or religious organization or such private club when the profits of the accommodations, advantages, facilities and services, above reasonable and necessary expenses, are solely for the benefit of such organization or club; nor, in the area of housing, (1) to the rental of housing accommodations for not more than two (2) families living independently of each other, if the lessor or a member of his/her family resides in one of the housing accommodations, or (2) to the lease or rental of sleeping facilities in any single-family housing unit if the lessor or a member of his/her family resides therein.

   (c)   Any person under the influence of alcohol or other drugs, or who is guilty of boisterous conduct, or who violates any regulation of any place of public accommodation that applies to all persons, regardless of race, color, religion, ancestry, sex, age, disability, national origin, sexual orientation, gender identity, familial status or marital status may be excluded without penalty under this article from any such place of public accommodation; and nothing in this article shall be considered to limit the right of such exclusion.

   (d)   Except as provided in subsection (e) below, this article shall not be applicable to a religious organization.

   (e)   This article shall apply to employment or an employment opportunity with a religious organization, wherein the duties of the position pertain solely to activities of the organization that generate unrelated business taxable income subject to taxation under section 511(a) of the internal revenue code of 1986.

   (f)   Notwithstanding section 17-12, it shall not be a violation of this article:

   (1)   For an employer, labor organization, or employment agency to prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;

   (2)   For an employer, labor organization, or employment agency to require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;

   (3)   For an employer, labor organization, or employment agency to 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.) or under the drug testing provisions of state law (A.R.S. § 23-493 et seq);

   (4)   For an employer, labor organization, or employment agency to 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;

   (5)   For a place of public accommodation to afford beneficial pricing or policies to senior citizens, students, or individuals with disabilities.

   (6)   For a place of public accommodation to operate solely as a male-only or a female- only fitness center/gymnasium, as long as the fitness center/gymnasium does not include any of the facilities other than gymnasium listed in section 17-11(m), and does not discriminate against any other protected group identified in section 17-1.

(Ord. No. 4169, § 2, 4-15-74; Ord. No. 4616, § 5, 2-7-77; Ord. No. 5472, § 1, 12-14-81; Ord. No. 9199, § 3, 2-1-99; Ord. No. 10375, § 3, 2-21-07)

Sec. 17-14. Violation a civil infraction; procedure; penalties.

   (a)   It is a civil infraction for any person to violate any of the provisions of this article; however, complaints of violations of this article shall proceed as prescribed in sections 17-15 and 17-16.

   (b)   The following penalties shall be imposed by the city court for civil infractions under this article:

   (1)   A person found responsible for a civil infraction for the first time shall be fined not less than three hundred dollars ($300.00) nor more than twenty-five hundred dollars ($2,500.00) per civil infraction. a person found responsible for the same civil infraction for a second time shall be fined not less than six hundred dollars ($600.00) nor more than twenty-five hundred dollars ($2,500.00). A person found responsible for the same civil infraction for a third or subsequent time shall be fined not less than nine hundred dollars ($900.00) nor more than twenty-five hundred dollars ($2,500.00). The imposition of a fine for a civil infraction under this section shall not be suspended.

   (2)   Failure of a respondent to comply with any order contained in a judgment for a civil infraction shall result in an additional fine of not less than three hundred dollars ($300.00) nor more than twenty-five hundred dollars ($2,500.00) for each day the respondent fails to comply. A respondent's second failure to comply with any order contained in a judgment for a civil infraction shall result in an additional fine of not less than six hundred dollars ($600.00) nor more than twenty-five hundred dollars ($2,500.00) for each day after the first determination of the respondent's failure to comply. A respondent's third and subsequent failure to comply with any order contained in a judgment for a civil infraction shall result in an additional fine of not less than nine hundred dollars ($900.00) nor more than twenty-five hundred dollars ($2,500.00) for each day after the second determination of respondent's failure to comply.

(Ord. No. 6461, §§ 8, 9, 7-7-86; Ord. No. 9199, § 3, 2-1-99)

   Editors Note: Ord. No. 4616, §§ 4, 5, adopted Feb. 7, 1977, specifically amended the Code by repealing former § 17-14 and adopting in lieu thereof new § 17-14 as herein set out. Former § 17-14 had pertained to implementation of the chapter's provisions, and had been derived from Ord. No. 4169, § 2, adopted Apr. 15, 1974. Subsequently § 8 of Ord. No. 6461, adopted July 7, 1986, repealed § 17-14; and § 9 enacted a new § 17-14.

Sec. 17-15. Complaint procedures.

   (a)   Any person claiming to be aggrieved by an alleged violation of this article may file with the Office of Equal Opportunity Programs of the city manager's office (hereinafter referred to as the "OEOP") a verified charge, in writing, within ninety (90) calendar days after the alleged violation occurred, on such forms as may be required by the OEOP. The charge shall set forth the facts upon which it is based and shall identify the person charged (hereinafter the "respondent"). The OEOP shall furnish the respondent with a copy of the charge and shall promptly investigate the allegations of discriminatory practices set forth in the charge.

   (b)   The respondent may file, not later than twenty (20) days following receipt of the charge, a written verified answer to the charge.

   (c)   The OEOP shall render written findings as to whether there is reasonable cause to substantiate the charge not later than one hundred twenty (120) calendar days from the filing of the charge. The OEOP shall furnish a report of its findings to the charging party and to the respondent.

   (d)   The charging party, within thirty (30) calendar days after receiving an OEOP finding of no cause, may file with the Tucson Human Relations Commission (hereinafter referred to as the "commission"), a request for review of the finding. The commission, or such members of the commission as the chair thereof may designate, shall, not later than forty-five (45) calendar days after the request is filed, schedule a meeting to determine whether the finding of no cause issued by the OEOP should be upheld or overturned. If it is determined that the OEOP finding of no cause should be upheld, the commission shall issue an order dismissing the case and shall furnish a copy of its order to the OEOP, the charging party, and the respondent. If it is determined that the OEOP finding of no cause should be reversed, the commission shall issue an order reversing the OEOP no cause finding and remand the case back to the OEOP for appropriate action. The commission shall furnish a copy of its order to the city attorney, the OEOP, the charging party, and the respondent.

   (e)   If the OEOP or the commission, in the event of a request for review, finds there is reasonable cause to believe that the respondent has engaged in a discriminatory practice, the OEOP may attempt to eliminate the alleged discriminatory practice by conference, conciliation and persuasion. The terms of a conciliation agreement may require the respondent to refrain in the future from committing discriminatory practices of the type stated in the agreement and to take such affirmative steps as the OEOP may require to carry out the purposes of this article. If a conciliation agreement is entered into, the OEOP shall issue an order stating its terms and furnish a copy of the order to the charging party and the respondent. Except for the terms of the conciliation agreement, neither the commission or the OEOP, nor any employee thereof, shall make public, without the written consent of the charging party and respondent, information concerning efforts in a particular case to eliminate a discriminatory practice by conference, conciliation or persuasion, whether or not there is a conciliation agreement.

   (f)   After a finding of reasonable cause by the OEOP, or by the commission in the event of a request for review and subsequent reversal of an OEOP finding of no cause, the OEOP may, in addition to the permissive remedy outlined in subsection (e), request the city attorney to file a complaint against respondent in the city court. Appeal of any judgment rendered by the magistrate shall be by way of special action to the superior court on the record as prescribed by Rule 23 of the Local Rules of Practice and Procedure in City Court Civil Proceedings.

   (g)   During the review process, the OEOP decision shall remain in effect.

(Ord. No. 5472, § 2, 12-14-81; Ord. No. 6461, § 3, 7-7-86; Ord. No. 7952, § 1, 11-23-92; Ord. No. 9199, § 3, 2-1-99; Ord. No. 10375, § 4, 2-21-07)