August 3, 1998
 
 

Mayor John Talbott and
Members of the Spokane City Council
City Hall
Spokane, WA 99220

        Re: Proposed Human Rights Ordinance

Dear Mayor Talbott and Council Members:

    The following are remarks that I plan to make at the City Council meeting tonight. If time prevents me from covering all of the points, I hope that you will supplement my remarks by reading this letter in its entirety.

    I am Professor of Law at Gonzaga University, but tonight I appear on behalf of Citizens for Common Sense, a grass-roots Spokane organization committed to protecting our community from harmful legislation.

    My central theme tonight is that the ordinance before you tonight is a law of unintended consequences. We acknowledge at the outset that many people who support this ordinance do so with the sincere belief that it will benefit our community. But we must be wary of the law of unintended consequences, which provides that many times we mistake what we hope will happen with what is likely to happen.

    Careful reflection, not just wishful thinking, will reveal that there are three very devastating consequences that are likely to result from this ordinance. First, it will result in significant expense to the city and its taxpayers, both directly and indirectly. Second, the ordinance would have a negative impact upon businesses who are considering investment in Spokane. Third, and most importantly, the ordinance would have the exact opposite of the claim that it will make our community more harmonious and inclusive.

I. Direct and Indirect Costs to the City

    I should point out that the ordinance addresses two distinct areas. First, it addresses discrimination that is already prohibited by state and federal law. For example, discrimination on the basis of age, race, gender, and so forth are prohibited. At the same time the ordinance creates new categories to be labeled as unlawful discrimination, and it is the latter that we primarily focus on.

A. Overlapping Jurisdiction with Existing Enforcement

    Although it sounds appealing for the City to prohibit discrimination on the basis of race, sex, age, and other categories already prohibited under federal and state law, it actually interferes with optimum enforcement policy. Spokane residents who experience discrimination already have remedies that are provided under state and federal law. The state human rights commission has an office in Spokane that is charged by state law with investigating and resolving claims of discrimination under state law. If the City creates its own remedies and enforcement mechanisms for the same acts of discrimination, the potential for confusion is substantial. After years of overlap between the federal and state agencies, there is now a policy to prevent duplicate claims. Adding yet another level of claims investigation and adjudication will generate additional confusion. Instead of reinventing the wheel at the local level, the City should develop close, cooperative relationships with the agencies that have the budget, the authority and the experience to deal effectively with these claims.

    B. Litigating New Categories of Discrimination Will Expose the City to Significant Risk

        Of course, there is more in the ordinance than the duplication of existing federal and state remedies for discrimination. The most widely noted aspect of the ordinance is to prohibit discrimination on the basis of sexual orientation, which is broadly defined as "homosexuality, bisexuality, or heterosexuality, whether such orientation is real or perceived." It also prohibits discrimination based on "gender identity," which again is broadly defined as "an individual's actual or perceived gender which may or may not be congruent with the individual's physical anatomy."

    We have heard that the Commission has spent hundreds of hours working on this ordinance, but I think it is safe to say that we have seen only the tip of the iceberg if this ordinance should become law. We know that even the most thoughtfully crafted legislation can lead to intense litigation where important issues are at stake, and this legislation is likely to be no exception. In fact, with all due respect to its drafters, I think that we can anticipate a great deal of litigation based upon some questionable features that were left in the ordinance. A three-year-old watching her father cook dinner may see that a sprinkling of pepper will make the meal taste better. To the untutored eye, if a sprinkling of pepper is good, then why not take the top off the shaker and dump the entire contents in?

        1. The Scope of Coverage

            Who will be covered by this legislation? For example, I'm a college professor who lives outside the city boundaries. Am I covered? Yes, as it turns out, I am. Do I run a business? Occasionally I hire someone to do yard work, or a babysitter for my children. Oh, you're fantasizing, you say. But look at the ordinance. It covers employers. Who are employers? ¶ 1.06.030(F) defines an employer as "any person who employs one or more employees . . ." An employee is defined as "an individual who works for wages, salary, commission, or a combination thereof . . ." (¶ 1.06.030(E)). Also, an employer includes anyone who "solicits individuals within the city to apply for employment . . ."

    Thus, if I make a phone call to a babysitter who lives within the city limits, I have become subject to the terms of this act.

    Far-fetched? Perhaps it is an admission against interest, but I train future lawyers in recognizing that a court will interpret a contract or legislation by what the documents say, not a subjective intention left unexpressed by a careless drafter. Moreover, the ordinance itself asks to be "broadly construed consistent with their remedial purpose." (¶ 1.06.020)

        2. The Remedies
 
            It has been claimed that the ordinance is relatively harmless because the remedies only extend to "mediation." In other words, unlike state laws that provide specific remedies for violation, the City is empowered only to arrange for meetings with the "accused" in order to see if mediation can produce a mutually agreeable outcome. But this is deceiving. If this were truly voluntary, then nothing more would be required than to authorize a city employee or volunteer to pick up the phone and call me on behalf of someone who thinks they have gotten a raw deal from me. But this ordinance is clearly designed to do more than provide the force of gentle persuasion. It is written in a way to try to coerce people into complying with its terms. Not only does the hearing examiner have the right to award "the same remedies as are afforded a complainant under comparable state statutes" for "reprisal" (¶1.06.050(C)), but there is additional ammunition that aggrieved claimants can use.

    For example, a lawyer was dismissed by the law firm he worked for and then sued the law firm for wrongful termination.⁽¹⁾ He argued that the City's adoption of an anti-discrimination ordinance changed the public policy in that area and that a violation of the ordinance became a violation of the state's public policy. In a similar case in California⁽²⁾ an employee argued that discrimination on the basis of sexual orientation was against the public policy of the state, and was allowed to sue the employer for wrongful termination. Thus, the coercive power of state law was used to back up what might have appeared to be a harmless invitation "to get together and try to understand each other better."
 
        3. The "Religious Exemption"

            There is a significant land mine located in the portion of the ordinance that grants an exemption for those for whom the enforcement of this ordinance would "substantially burden" the exercise of their religion. As a scholar in this area⁽³⁾ I can tell you that there is hardly any area more vigorously disputed than a determination of what constitutes a substantial burden on religion. In addition, I can say as a citizen that there are few areas I would less like the government to determine than what constitutes a religion and what substantially burdens it. For example, if a church restricts membership in its choir based on sexual orientation or gender identity, will that be exempted? Will someone at City Hall sit in judgment of whether there is a substantial burden on religion? What if the religious denomination has itself prohibited discrimination, but holds that homosexual conduct is wrong? Does that denomination get an exemption? What if an employee of a secular business is involved in curing homosexuals of their addiction, and attempts to preach the Good News to other employees, some of whom are homosexual. Is that protected speech? Or subject to discipline by the employer?

II. Discouraging Business in Spokane

    A. Litigation Costs.

        I needn't tell any of the Council members who own a business that the prospect of employment discrimination litigation is one of the most terrifying business expenses. The advice of defense counsel is often simply to settle out of court because the cost of winning is astronomical -- the cost of winning; the cost of losing is even worse. I am not going to spin a hypothetical tale of what might happen by some remote chance. I'm going to tell you about a real case that many of you have heard about, the so-called "pink pearls" case. It happened in this state, not to a small-town bigot, but to the Boeing Company. Jane Doe, as she came to call herself, started her employment at Boeing as John Doe. He discovered in the course of his employment that he was a woman trapped in a man's body. He wanted to have a sex change operation, but first he was advised to start acting like a woman. Despite being told not to use the women's restroom as long as he was a male, Doe did so anyway.

    On November 4, 1985, the first day Doe worked after the grace period, Doe wore attire that her supervisor considered acceptable. Doe responded that she was disappointed that her attire was acceptable, and that she would "push it" the next day. By "push it", Doe testified that she meant she would wear more extreme feminine attire. The next day, Doe came to work wearing similar attire, but she included as part of her outfit a strand of pink pearls which she refused to remove. This outfit was similar to one she had been told during the grace period was unacceptable in that the addition of the pink pearls changed Doe's look from unisex to "excessively" feminine. Doe was subsequently terminated from her position at Boeing as a result of her willful violation of Boeing's directives.⁽⁴⁾

    Well, that's outrageous, you might say. But no, Doe sued Boeing for handicap discrimination. The Superior Court dismissed the case, but the appellate court unanimously reversed, finding that "gender dysphoria" was a handicap and that Boeing had not reasonably accommodated it. Finally the Supreme Court reversed again. The good news for Boeing? They only had to pay their attorney fees, which must have run into the hundreds of thousands of dollars.

    Because this ordinance is so radical, and because it is so poorly written, it would be naive not to expect that the passage of this ordinance will make Spokane ground zero in the culture war over acceptance of the homosexual lifestyle. Just as Jane Doe wanted to "push it" in the pink pearls case, you can rest assured that there are many litigants happy to help take this ordinance as the first step in a longer journey toward full acceptance of homosexual conduct.

    I should also caution that the urge to litigate is not confined to one side of this culture war. Organizations like the American Center for Law and Justice have displayed no reticence in challenging the application of laws that they believe infringe upon protected religious liberties. Spokane would be caught in the crossfire of a culture war that makes interesting news if you're sitting in your armchair, but could bankrupt a city or an employer who had the misfortune of being caught in the middle.

    B. Chilling Legitimate Expression

        Employers are also at risk for permitting the normal kind of interchange of thoughts and ideas in their workplace. Many employees feel strongly about the value of family, and disapprove of arrangements that are inimical to good family values. To the extent that these views are critical to or "hurtful" to homosexuals, they would put the employer at risk of being sued for a "hostile work environment." Suits of this nature have already been filed in Seattle under a similar ordinance.⁽⁵⁾

III. Creating a Climate of Divisiveness in Spokane

    Up to now I have described the practical disadvantages of this ordinance--that it will be costly to the city both directly and indirectly. But these costs would be acceptable growing pains if the end result were a community that was more open, more inclusive and more harmonious. But we can expect just the opposite.

    A. Objection to Homosexual Conduct is Not Irrational Prejudice

        The proponents of this ordinance no doubt believe that it only outlaws irrational prejudice, like a belief that one racial group is superior to another. It must be recognized that we don't have much sympathy with businesses that indulge that point of view. If your business wants to refuse to hire employees because of their race, or gender, you will quickly come to financial ruin. Our country went through some wrenching times in the 60's because we thought there was no rational basis for continuing to segregate on the basis of race. A tiny number still claim that right, but no business, no manager, would argue for different treatment based on race. But a large number of people believe, many of them based on religious teaching from the highest authority, that homosexual conduct is wrong, and that it is inimical to personal and social integrity.

    Anyone who runs a business knows that character is an essential quality to be sought in employees. Many people believe that one's ability to act responsibly in areas of sexual morality is closely related to the ability to exhibit character in other aspects of one's life. Moreover, many people believe that homosexual conduct is especially irresponsible, both because of its personal and health-related consequences. Everyone in this room has heard the issue debated on countless talk shows. I'm not here to persuade you to follow the views of those who teach that homosexual conduct is intrinsically disordered conduct, that it is never right, and that it is gravely sinful. That debate will continue as long as there is religious freedom in this country.

B. Spokane Citizens Should Not Have to Choose Between Religious Belief and Loyalty to their Government

    It has been widely acknowledged that if this initiative were put to a vote by the citizens of Spokane, they would overwhelmingly reject it. We know that because of the vote on Initiative 676, most voters in Spokane believe that there is no need for protective legislation; some because they think that homosexuality, unlike race or gender, is something that can be acted upon or not. Others base their skepticism either directly or indirectly on religious beliefs. This ordinance is not a courageous defense of what is right regardless of the poll numbers. It is a substitution of sentimentality for prudent government. Suppose you had a friend who said she had chest pains, and fainted in your kitchen. What would you do? Would you lay your friend out on the kitchen table and start exploratory surgery with the bread knife? No, you would recognize how dangerous such a reaction would be. Suppose it was a friend you felt you'd neglected, who accused you of not really caring about him or her? Should that influence your decision? No, the stronger the emotional reaction, the less likely it is to be a reliable guide to action.

    Spokane has been stung by the repeated accusation that our community is less tolerant than it should be, less open to the diversity of backgrounds and gifts that make for a vibrant community. We feel desperate to prove that this is not the case. But that frame of mind is not conducive to sound policymaking. It is especially dangerous when considering something as far-reaching and poorly constructed as this ordinance. Spokane deserves responsible leadership from its City Council, not raw emotionalism that gives the back of its hand to considerations of prudence and the most deeply held beliefs of substantial numbers of its citizens.

Very truly yours,
 
 

David K. DeWolf

1. Greenwood v. Taft, Stettinius & Hollister, 105 Ohio App.3d 295, 663 N.E.2d 1030 (1995).

2. Leibert v. Transworld Systems, Inc., 32 Cal.App.4th 1693, 39 Cal.Rptr.2d 65 (1995).

3. DeWolf, State Action Under the Religion Clauses: Neutral in Result or Neutral in Treatment? 24 U. Richmond L. Rev. 253 (1990).

4. Doe v. Boeing Co., 121 Wash.2d 8, 12-13, 846 P.2d 531, 534 (1993).

5. John Dill v. CPA Referral Service, Inc., Seattle Human Rights Commission Docket # SHR94PE016 (1994).