For the second time in five years, City Council has shelved a non-discrimination ordinance without bringing the proposal up for a vote.
On Aug. 10, the Scottsdale Human Relations Commission unanimously voted to recommend Council adopt a non-discrimination ordinance and anti-harassment policy.
A week later, Commission Chair Janice Shimokubo and Vice Chair Emily Hinchman wrote Council asking the proposals be added to an agenda within 60 days.
That unofficial deadline passed on Oct. 16 with no action and it appears unlikely Council will take up the proposals before the end of the year.
“After their recommendation was shared with the City Council, the city manager has asked staff to do additional research before bringing this item forward for City Council discussion,” said Sharon Cini, Scottsdale’s diversity and inclusion program manager, on Sept. 16.
City spokesman Kelly Corsette told the Progress that staff is still researching the topic and no date has been set to bring the proposals before Council.
But Councilwoman Virginia Korte said she does not believe the proposal will have to wait until a new Council takes office in January.
“Bottom line – the thing was pulled because it didn’t have the support,” Korte said.
“The staff can spin it any way they want, but it’s almost the same individuals” who opposed a similar ordinance in 2016, Korte said.
Korte supported a similar proposal in 2015 and 2016 but that ordinance never received a vote after some council members supported an exemption for small businesses.
Korte said the exception would have applied to about 95 percent of Scottsdale businesses and effectively neutered the ordinance.
“There’s a bigot in that crowd and then there’s some that just believe that this is a solution looking for a problem and others that believe that discrimination doesn’t exist and others that don’t want to piss off their constituency,” Korte said.
The proposals recommended by the Human Relations Commission would ban most businesses and all elected and appointed officials from discriminating against individuals due to ethnicity, age, race, sex, gender, national origin, religious belief, sexual orientation, gender identity or disability.
The ordinance would ban discrimination in employment, housing or public accommodations, with valid complaints referred to a mediator.
In the case of a violation, civil charges could only be filed following a review by the City Attorney, with penalties varying from a warning to incremental fines of up to $2,500.
The proposed non-discrimination ordinance would forbid elected and appointed officials from retaliating against anyone who filed a complaint.
Mayor Jim Lane indicated he still does not support passing a non-discrimination ordinance, saying he is opposed to local legislation that duplicates state or federal law.
“So that’s my primary concern, because we’re creating, as I read it, a good bit of overlap,” Lane said. “It’s a tremendous amount of additional bureaucracy in order to affect this over the entire population and all businesses.”
But Korte said the citywide ordinance is needed because it goes beyond what currently exists in state or federal law by extending protections to the LGBTQ community.
Federal law already bans discrimination on the basis of age, race, religion, disability or sex but neither state nor federal law includes blanket protections on the basis of sexual orientation or identity.
The Supreme Court did expand LGBTQ rights on a limited basis in June when it ruled a federal civil rights law prohibiting employers from discriminating on the basis of sex also protects against discrimination based on sexual orientation or identity.
“What a huge step that was for our country but we still have more work to do,” Korte said.
In 2017, Council passed the buck to the state Legislature by including support for “efforts to amend state laws to prohibit discrimination in employment, housing and public accommodations based on sexual orientation and gender identity” in its 2018 legislative agenda.
Korte said she agreed that anti-discrimination legislation would be best addressed at the state level but she does not have confidence the Legislature will tackle the issue.
“So, I believe local jurisdictions then need to take the lead,” Korte said.
Several other cities in Arizona – including Phoenix, Flagstaff, Tempe and Sedona – have passed non-discrimination ordinances.
Lane said he is concerned about “legislating morality” and infringing on individual rights.
“And I don’t mean the right to be bigoted,” Lane said. “I mean the right to think what they might believe by faith and any number of things.”
Lane is also worried the possibility of false claims under an ordinance being used to settle grudges and said he would rather see individuals voluntarily show respect to others.
“It doesn’t mean that we necessarily have to love each other all the time, but it does mean that we need to respect each other to the point that given everything being equal, you’re not discriminating against somebody on the basis of the color of their skin or ethnicity or the language they speak,” Lane said.
“But there are certainly reasons that somebody may not want to have somebody working with them that can easily get translated into bigotry when it’s nothing more than making a judgment on characters, mannerism, or any number of other things, maybe even just having a chip on their shoulder,” Lane added.
But Korte said the city needs to codify protections for marginalized groups in order to prevent discrimination.
“You can put your head in the sand all day long and believe that discrimination doesn’t exist in Scottsdale, but it does,” Korte said. “And the bottom line is that the LGBTQ community is not protected by the Constitution of the United States when it comes to housing and when it comes to public spaces and accommodations.”
Though Korte has little hope that the current Council will take up the issue, she was optimistic a new one will consider the Human Relations Commission’s proposal.
The makeup of the current council remains largely the same as the one that decided to punt the issue in 2016 with the exception of Councilwoman Solange Whitehead, who was elected in 2018.
But that makeup will change considerably in January following the November election as voters will elect a new mayor and fill three council seats.
That means at least three and up to four votes could change as Lane leaves office alongside Korte and Councilwoman Suzanne Klapp.
Incumbent Councilman Guy Phillips – who also opposed the non-discrimination ordinance in 2016 – is the only incumbent up for re-election.
The fate of the ordinance depends heavily on whom Scottsdale voters choose on Nov. 3 when they cast ballots.
Mayoral candidates Lisa Borowsky and David Ortega are split on the issue.
At a mayoral forum in September, Ortega said he supported the proposed ordinance while Borowsky said she opposed it.
Ortega told the Progress he supported passing an ordinance after “complete public discussion” on the topic.
“Scottsdale is all about welcoming the world and the world in all it’s diversity…and that’s what we sell, that’s what we do with our events,” Ortega said. “That’s what we promote and our general hospitality, so reaffirming that ourselves is consistent with our entire mission as a city.”
But Borowsky, like Lane, said that she believes an anti-discrimination ordinance is unnecessary because federal law already prohibits discrimination.
“These laws already apply in Scottsdale,” Borowsky said. “The U.S. Supreme Court recently issued its decision which expanded, or clarified, the inclusion of discrimination on the ‘basis of sex’ (including LGBTQ+) as prohibited and protected.”
Borowsky said a new ordinance could open the city up to enforcement costs and potential lawsuits.
“To be clear, I am zero-tolerance on any form of discrimination, and I will fight to protect our great City from such behavior,” Borowsky said. “As to the need for the City to enact laws that are redundant, unnecessary or, potentially, inconsistent with laws already in place, I am opposed to this.”
Most candidates in the council race support passing a non-discrimination ordinance, including Tammy Caputi, Tom Durham, Betty Janik and John Little.
Phillips did not respond to a request for comment.
Janik said she supported the Human Relations Commission’s request for a non-discrimination ordinance.
“Scottsdale needs to join with other local communities where there is no place for discrimination or prejudice based on race, ethnicity, sexual orientation or other resident classes,” Janik said.
Caputi said Scottsdale is a “golden rule city” and should be welcoming all people equally.
“I support and advocate for a non-discrimination ordinance to be developed in Scottsdale,” Caputi said. “It’s good for business and good for tourism; it’s the right thing to do and the right message for our city.”
Little said he has supported a non-discrimation ordinance since he launched his campaign over one year ago.
“Not only is it the right thing to do from a human rights perspective,” Little said, “it is an important element in promoting Scottsdale as a tourism destination and as a welcoming community that opens its arms of opportunity to all people equally.”
Durham said he supported passing the ordinance, citing the Supreme Court decision protecting LGBTQ individuals from employment discrimination.
“The Supreme Court recently held in the Bostock case that discrimination on the basis of sexual orientation is illegal, and Scottsdale law should match up with the federal law,” Durham said. “Everyone should be accepted here. It is also important to me that the ordinance specifically protects First Amendment freedoms.”
Candidate Becca Linnig did not respond to a request for comment.