ARTICLE VI. DISCRIMINATION BASED ON SEXUAL ORIENTATION

DIVISION 1. GENERALLY

Sec. 10-1101. Legislative findings and statement of policy.

The council finds that:

(1) The population of the City of South Portland is diverse and includes people of every sexual orientation, some of whom are discriminated against in employment opportunities, housing, access to public accommodations and in the extension of financial credit; and

(2) Neither the federal government, nor the state, nor the city currently has any law prohibiting discrimination based on sexual orientation.

Therefore, to protect the public health, safety and welfare, it is declared to be the policy of this City to prevent discriminatory practices that infringe on the basic human right to a life with dignity, and the causes of such practices, so that corrective measures may, where possible, be promptly recommended and implemented, and to prevent discrimination in employment, housing, access to public accommodations or in the extension of credit on account of sexual orientation.

Sec. 10-1102. Definitions. As used in this chapter, unless the context otherwise indicates, the following words shall have the following meanings:

Discriminate. "Discriminate" includes, without limitation, segregate or separate.

Employee. "Employee" does not include any individual employed by his parents, spouse or child. For the purpose of this Article, "Employee" includes but is not limited to, unpaid volunteers.

Employer. "Employer" includes any person in this city employing any number of employees, whether paid or volunteer, whatever the place of employment of such employees, and any person outside this city employing any number of employees whose usual place of employment is in this city; any person acting in the interest of any employer, directly or indirectly; and labor organizations, whether or not organized on a religious, fraternal or sectarian basis, with respect to their employment of employees; but does not include a religious or fraternal corporation or association, not organized for private profit and in fact not conducted for private profit, with respect to employment of its members of the same religion, sect or fraternity.

Employment agency. "Employment agency" includes any person undertaking with or without compensation to procure opportunities to work, or to procure, recruit, refer or place employees; it includes, without limitation, placement services, training schools and centers, and labor organizations, to the extent that they act as employee referral sources; and it includes any agent of such person.

Housing accommodation. "Housing accommodation" includes any building or structure or portion thereof, or any parcel of land, developed or undeveloped, which is occupied, or is intended to be occupied or to be developed for occupancy, for residential purposes excepting:

(1) The rental of a one-family unit of a two-family dwelling, one (1) unit of which is occupied by the owner;

(2) The rental of not more than four (4) rooms of a one-family dwelling which is occupied by the owner;

(3) The rental of any dwelling owned, controlled or operated for other than a commercial purpose by a religious corporation to its membership unless such membership is restricted on account of sexual orientation.

Person. "Person" includes one (1) or more individuals, partnerships, associations, organizations, corporations, municipal corporations, legal representatives, trustees, trustees in bankruptcy, receivers and other legal representatives, and includes the city and all agencies thereof.

Place of public accommodation. "Place of public accommodation" means any establishment which in fact caters to, or offers it goods, facilities or services to, or solicits or accepts patronage from, the general public; and it includes, but is not limited to: inns, taverns, roadhouses, hotels, whether conducted for the entertainment or accommodation of transient guests or of those seeking health, recreation or rest, restaurants, eating houses or any place where food is sold for consumption on the premises; buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectioneries, soda fountains and all stores where beverages of any kind are retailed for consumption on the premises; retail stores and establishments; dispensaries, clinics, hospitals, rest rooms, bathhouses, barber shops, beauty parlors, theaters, motion picture houses, music halls, airdromes, roof gardens, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors, swimming pools, seashore accommodations and boardwalks, public libraries, garages and gasoline stations; all public conveyances operated on land, water or in the air as well as the stations and terminals thereof; public halls and public elevators of buildings occupied by two (2) or more tenants or by the owner and one (1) or more tenants; and educational institutions.

Real estate broker and salesman. "Real estate broker" and "real estate salesman" have the same definitions as are given respectively in Title 32, Section 4001, subsections 2 and 3 of the Maine Revised Statutes Annotated; but include all persons meeting those definitions, whether or not they are licensed or required to be licensed.

Sexual orientation. "Sexual orientation" means having an orientation for, or being identified as having an orientation for, heterosexuality, homosexuality or bisexuality, having a history of that preference or being identified with that preference.

DIVISION 2. FAIR EMPLOYMENT

Sec. 10-1103. Unlawful employment discrimination.

It shall be unlawful employment discrimination, in violation of this article, except where based on a bona fide occupational qualification:

(1) For any employer to fail or refuse to hire or otherwise discriminate against any applicant for employment because of sexual orientation or because of such reason to discharge an employee or discriminate with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment, or in recruiting of individuals for employment or in hiring them, to utilize any employment agency which such employer knows, or has reasonable cause to know, discriminates against individuals because of their sexual orientation.

(2) For any employment agency to fail or refuse to classify properly or refer for employment or otherwise discriminate against any individual because of sexual orientation, or to comply with an employer's request for the referral of job applicants, if such request indicates whether directly or indirectly that such employer will not afford full and equal employment opportunities to individuals regardless of their sexual orientation.

(3) For any labor organization to exclude from apprenticeship or membership, or to deny full and equal membership rights, to any applicant for membership, because of sexual orientation, or because of such reason to deny a member full and equal membership rights, expel from membership, penalize or otherwise discriminate in any manner with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment, representation, grievances or any other matter directly or indirectly related to membership or employment, whether or not authorized or required by the constitution or bylaws of such labor organization or by a collective labor agreement or other contract, or to fail or refuse to classify properly or refer for employment, or otherwise to discriminate against any member because of such sexual orientation, or to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(4) For any employer or employment agency or labor organization, prior to employment or admission to membership of any individual, to:

a. Elicit or attempt to elicit any information directly or indirectly pertaining to sexual orientation except where some privileged information is necessary for an employment agency or labor organization to make a suitable job referral;

b. Make or keep a record of sexual orientation;

c. Use any form of application for employment or personnel or membership blank containing questions or entries directly or indirectly pertaining to sexual orientation;

d. Print or publish or cause to be printed or published any notice or advertisement relating to employment or membership indicating any preference, limitation, specification or discrimination based upon sexual orientation;

e. Establish, announce or follow a policy of denying or limiting, through a quota system or otherwise, employment or membership opportunities of any group because of sexual orientation; or

(5) For an employer or employment agency or labor organization to discriminate in any manner against any individual because they have opposed any practice which would be a violation of this article, or because they have made a charge, testified or assisted in any manner in any investigation, proceeding or hearing under this article.

Sec. 10-1104. Not unlawful employment discrimination.

It shall not be unlawful employment discrimination:

(1) Records. After employment or admission to membership, to make a record of such features of an individual as are needed in good faith for the purpose of identifying them, provided such record is intended and used in good faith solely for such identification, and not for the purpose of discrimination in violation of this article.

(2) Required records. To record any data required by law, or by the rules and regulations of any state or federal agency, provided such records are kept in good faith for the purpose of complying with law, and are not used for the purpose of discrimination in violation of this article.

DIVISION 3. FAIR HOUSING

Sec. 10-1105. Unlawful housing discrimination.

It shall be unlawful housing discrimination, in violation of this article:

(1) For any owner, lessee, sublessee, managing agent or other person having the right to sell, rent, lease or manage a housing accommodation, or any agent of these to make or cause to be made any written or oral inquiry concerning the sexual orientation of any prospective purchaser, occupant or tenant of such housing accommodation; or to refuse to show or refuse to sell, rent, lease, let or otherwise deny to or withhold from any individual such housing accommodation because of sexual orientation of such individual; or to issue any advertisement relating to the sale, rental or lease of such housing accommodation which indicates any preference, limitation, specification or discrimination based upon sexual orientation; or to discriminate against any individual because of sexual orientation in the price, terms, conditions or privileges of the sale, rental or lease of any such housing accommodations or in the furnishing of facilities or services in connection therewith, or to evict or attempt to evict any tenant of any housing accommodation because of sexual orientation;

(2) For any real estate broker or real estate sales person, or agent of one (1) of them, to fail or refuse to show any applicant for a housing accommodation any such accommodation listed for sale, lease or rental, because of sexual orientation of such applicant or of any intended occupant of such accommodation, or to misrepresent for the purpose of discriminating on account of sexual orientation of such applicant or intended occupant the availability or asking price of a housing accommodation listed for sale, lease or rental; or for such a reason to fail to communicate to the person having the right to sell or lease such housing accommodation any offer for the same made by any applicant thereof; or in any other manner to discriminate against any applicant for housing because of sexual orientation of such applicant or of any intended occupant of the housing accommodation, or to make or cause to be made any written or oral inquiry or record concerning the sexual orientation of any such applicant or intended occupant, or to accept for listing any housing accommodation when the person having the right to sell or lease the same has directly or indirectly indicated an intention of discriminating among prospective tenants or purchasers on the ground of their sexual orientation; or

(3) For any person to whom application is made for a loan or other form of financial assistance for the acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation, whether secured or unsecured, or agent of such person, to make or cause to be made any oral or written inquiry concerning the sexual orientation of any individual seeking such financial assistance, or of existing or prospective occupants or tenants of such housing accommodations; or to discriminate in the granting of such financial assistance, or in the terms, conditions or privileges relating to the obtaining or use of any such financial assistance, against any applicant because of the sexual orientation of such applicant or of the existing or prospective occupants or tenants.

Sec. 10-1106. Application.

Nothing in this article shall be construed in any manner to prohibit or limit the exercise of the privilege of every person and the agent of any person having the right to sell, rent, lease or manage a housing accommodation to set up and enforce specifications in the selling, renting, leasing or letting thereof or in the furnishings of facilities or services in connection therewith which are not based on the sexual orientation of any prospective or actual purchaser, lessee, tenant or occupant thereof. Nothing in this article contained shall be construed in any manner to prohibit or limit the exercise of the privilege of every person and the agent of any person making loans for or offering financial assistance in the acquisition, construction, rehabilitation, repair or maintenance of housing accommodations to set standards and preferences, terms, conditions, limitations or specifications for the granting of such loans or financial assistance which are not based on the sexual orientation of any existing or prospective owner, lessee, tenant or occupant of such housing accommodation.

DIVISION 4. PUBLIC ACCOMMODATIONS

Sec. 10-1107. Unlawful public accommodations.

It shall be unlawful public accommodations discrimination, in violation of this article:

(1) For any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, to directly or indirectly refuse, withhold from or deny to any person, on account of sexual orientation, any of the accommodations, advantages, facilities or privileges of such place of public accommodation, or for such reason in any manner to discriminate against any person in the price, terms or conditions upon which access to such accommodations, advantages, facilities and privileges may depend; or

(2) For any person to directly or indirectly publish, circulate, issue, display, post or mail any written, printed, painted or broadcast communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any place of public accommodation shall be refused, withheld from or denied to any person on account of sexual orientation, or that the patronage or custom thereat of any person belonging to or purporting to be of any particular sexual orientation is unwelcome, objectionable or not acceptable, desired or solicited, or that the clientele thereof is restricted to members of particular sexual orientation. The production of any such written, printed, painted or broadcast communication, notice or advertisement, purporting to relate to any such place, shall be presumptive evidence in any action that the same was authorized by its owner, manager or proprietor.

DIVISION 5. FAIR CREDIT EXTENSION

Sec.10-1108. Unlawful credit extension discrimination.

It shall be unlawful credit discrimination for any creditor to refuse the extension of credit to any person solely on the basis of sexual orientation in any credit transaction. It shall not be unlawful credit discrimination to comply with the terms and conditions of any bona fide group credit life, accident and health insurance plan, for a financial institution extending credit to a married person to require both the husband and the wife to sign a note and a mortgage and to deny credit to persons under the age of eighteen (18) or to consider a person's age in determining the terms upon which credit will be extended.

Sec. 10-1109 Definitions.

As used in this division, unless the context otherwise requires, the following words shall have the following meanings:

Application for credit. "Application for credit" means any communication, oral or written, by a person to a creditor requesting an extension of credit to that person or to any other person, and includes any procedure involving the renewal or alteration of credit privileges or the changing of the name of the person to whom credit is extended.

Credit. "Credit" means the right granted by a creditor to a person to defer payment of debt or to incur debt and defer its payment, or purchase property or services and defer payment therefor.

Credit sale. "Credit sale" means any transaction with respect to which credit is granted or arranged by the seller. The term includes any contract in the form of a bailment or lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the property and services involved and it is agreed that the bailee or lessee will become the owner of the property upon full compliance with his obligations under the contract.

Credit transaction. "Credit transaction" means any invitation to apply for credit, application for credit, extension of credit or credit sale.

Creditor. "Creditor" means any person who regularly extends or arranges for the extension of credit for which the payment of a finance charge or interest is required, whether in connection with loans, sale of property or services or otherwise.

Extension of credit. "Extension of credit" means any acts incident to the evaluation of an application for credit and the granting of credit.

Invitation to apply for credit. "Invitation to apply for credit" means any communication, oral or written, by a creditor which encourages or prompts an application for credit.

DIVISION 6. ENFORCEMENT

Sec. 10-1110 Enforcement by City or Private Individual.

The City Council recognizes that both government and private individuals have legitimate interests in preventing and responding to human rights violations. Therefore, the provisions of this Article may be enforced by either one or both of the following procedures:

(a) City enforcement. This Article may be enforced by the South Portland Police Chief, or his/her designee in the South Portland Police Department, in conjunction with the Corporation Counsel or other authorized legal counsel for the City. An enforcement action pursuant to this authority may be initiated by a complaint from a person alleging discrimination or may be initiated by the City.

(b) Private enforcement. This Article may be enforced in Maine District Court as a local ordinance enforcement action brought by a private individual alleging discrimination in violation of this Article. Within the time limit stated in Section 10-1112(3) below, a person who has been subject to unlawful discrimination may directly file a private enforcement action against the person or persons who committed the unlawful discrimination.

 Sec. 10-1111. Burden of proof.

In any civil action under this article, the burden shall be on the person seeking relief to prove, by a fair preponderance of the evidence, that the alleged unlawful discrimination occurred.

Sec. 10-1112. Actions filed under this article.

In any action filed under this article by any person:

(1) Where any person who has been the subject of alleged unlawful housing discrimination has not acquired substitute housing, temporary injunctions against the sale or rental to others of the housing accommodations as to which the violation allegedly occurred, or against the sale or rental of a single housing accommodation substantially identical thereto and controlled by the alleged violator shall be liberally granted in the interests of furthering the purposes of this article, when it appears probable that the plaintiff will succeed upon final disposition of the case.

(2) If the court finds that unlawful discrimination occurred, its judgment shall specify an appropriate remedy or remedies therefor. Such remedies may include, but are not limited to:

a. An order to cease and desist from the unlawful practices specified in the order;

b. An order to employ or reinstate a victim of unlawful employment discrimination, with or without back pay;

c. An order to accept or reinstate such a person in a union;

d. An order to rent or sell a specified housing accommodation, or one (1) substantially identical thereto if controlled by the respondent, to a victim of unlawful housing discrimination;

e. An order requiring the disclosure of the locations and descriptions of all housing accommodations which the violator has the right to sell, rent, lease or manage;

f. An order to pay in cases of unlawful price discrimination the victim thereof three (3) times the amount of any excessive price demanded and paid by reason of such unlawful discrimination; and

g. An order to pay to the complainant civil penal damages not in excess of one thousand dollars ($1,000.00) in the case of the first order under this article against the respondent, not in excess of two thousand dollars ($2,000.00) in the case of a second such order against the respondent, and not in excess of three thousand dollars ($3,000.00) in the case of a third or subsequent such order against the respondent.

(3) The action shall be commenced not more than two (2) years after the act of unlawful discrimination complained of.

Sec. 10-1113. Attorneys' fees and costs.

In any civil action under this article, the court, in its discretion, may allow the prevailing party reasonable attorneys' fees and costs.

 DIVISION 7. MISCELLANEOUS

 Sec. 10-1114. Exceptions.

In addition to the other exceptions and exemptions provided in this Article, this Article does not:

(1) Require the teaching of any particular subject in the public schools; or

(2) Require any form of affirmative action based on sexual orientation.

Sec. 10-1115. Severability.

If any section, phrase, sentence or portion of this Article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions thereof.

 [Fiscal note: less than $1000]

Dated: April 6, 1998

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