Omaha Passes Sexual Orientation Ordinance

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On March 13, 2012, on a 4-3 vote, the Omaha City Council amended its Ordinance prohibiting discrimination to include sexual orientation and gender identity. By definition the Ordinance states that it applies to prohibit "any practice or act within the City which is designated as discriminatory under the terms" of the Ordinance. It applies to employers with 6 or more employees. Consequently, we would expect the Omaha Human Rights and Relations Department ("OHRRD") to assert jurisdiction not only over employers located in Omaha, but also employers not located in Omaha which have employees working within the City and experience gender identity or sexual orientation discrimination in their employment. The claims that employers outside of Omaha most likely would face would be claims for unlawful harassment while working in Omaha. Employers that are not located in Omaha likely should not face discriminatory hiring and termination claims unless the employee's place of employment is within Omaha. The OHRRD may contend that even if the discriminatory decision was made outside of Omaha, its impact occurred in Omaha making it unlawful. Consequently, employers throughout the state that do work in Omaha should evaluate their compliance programs. The new protected status also extends to places of public accommodation in Omaha, with certain exceptions.

The Ordinance will be effective on March 30, 2011.

The Ordinance defines Gender Identity as "the actual or perceived appearance, expression, identity or behavior of a person as being male or female, whether or not that appearance, expression, identity or behavior is different from that traditionally associated with the person's designated sex at birth." It further defines Sexual Orientation as "actual or perceived heterosexuality, homosexuality, or bisexuality."

Exceptions

1. These provisions do not apply to (a) public accommodations that are operated by or on behalf of religious organizations that make the public accommodation available only to those of the same faith, (b) employees of such religious organizations connected with carrying on the religious activities - e.g. church office personnel, or (c) employees of schools owned, supported or managed by the religious institution and the choice of employees is necessary to promote the religious principles for which the school is established or maintained.

2. The law does not require that employers provide employee benefits to same sex partners. A bill introduced in the Nebraska legislature, LB 912, would preclude the recent amendments to the Omaha law because it differed from Nebraska state law which does not prohibit discrimination based on sexual orientation or gender identity. However the bill has not advanced from committee and we do not expect it to at this point.