Add a legal analysis from Bentonville School Board member Grant Lightle and an important decision by the federal Equal Employment Opportunity Commission to the debate over a non-discrimination policy for the Bentonville School District (and any other government agency for that matter).

As I’ve reported before, the seven-member board is split on a proposal to add sexual orientation and gender identity to the district’s equal employment opportunity policy. Advocates of non-discrimination weren’t happy with a wishy-washy opinion from district attorney Marshall Ney of the Friday Law Firm that the U.S. Supreme Court ruling in favor of same-sex marriage might suggest a need for a bit more study of impact on the district.

Most others would say at the outset that the district may not give health insurance to heterosexual spouses and exclude same-sex spouses. But there’s also this: same-sex spouses might  fear identifying themselves for insurance coverage in a district where a portion of the school board clearly favors discrimination against gay people (it’s their Christian religion, see.)

Today, Lightle, a lawyer for 19 years who’s associate general counsel for Sam’s Club, sent his response to Ney’s opinion. In short, the law shows that the district needs a non-discrimination policy.

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About the same time I receivded his note, I saw news that the federal Equal Employment Opportunity Commission had ruled that existing civil rights law bars sexual orientation-based employment discrimination. This historic ruling is going to come as very sad news to Bart Hester and others who’ve led the charge for legal discrimination against gays in the Arkansas legislature.

Times are changing. In the meanwhile, here’s Lightle’s analysis of what Ney failed to say about the need for anti-discrimination policies in Bentonville (it could apply anywhere):

While the opinion of counsel presented to the School Board correctly recaps Obergefell, et al. v. Hodges, it completely (and rather inexplicably) omits any examination or analysis of the special Constitutional considerations inherent to public employment.

The U.S. Constitution protects certain individual liberties from restriction by action at any level of government, including local school districts. Under Obergefell, all individuals have a fundamental right to marry under the Constitution, and that right applies to both opposite and same-sex couples under the equal protection and due process clauses of the Fourteenth Amendment. Similarly, under the Supreme Court’s 2003 ruling in Lawrence v. Texas, all individuals have a Constitutional liberty to be free from government intrusions with respect to private affections between consenting adults, regardless of sexual orientation.

All governmental bodies must understand and respect Constitutional liberties, particularly as they arise in the context of employment practices. Failure to do so may subject government actors and officials to civil rights claims and liability under Section 1983, including compensatory damages, punitive damages, equitable relief, and recovery of attorneys’ fees.

Under the Doctrine of Unconstitutional Conditions, a governmental actor—which includes public school districts—cannot lawfully compel or coerce an individual to waive or refrain from exercising Constitutional liberties as a condition to receiving a governmental benefit, including public employment, nor can they punish an employee for exercising such liberties. In other words, a governmental actor cannot coerce or otherwise accomplish indirectly what it is prohibited from doing directly. As such, our school district cannot in effect force an employee or prospective employee to choose between availing themselves of their Constitutional liberties— including their right to marry and their right to engage in consensual adult affections— and their ability to obtain or hold a position of public employment.

In short, any discrimination in employment by the District based upon the employee or prospective employee’s exercise of her right to marry or right to engage in a consenting, adult affections would likely be a civil rights violation. Further, failure to have a policy prohibiting such discrimination would leave the District without a viable legal defense to such a claim.  

UPDATE: The group working for a non-discrimination policy in the Bentonville schools later seized on the EEOC decision to support their campaign. It wrote the School Board:

Dear School Board Members and Mr. Poore,

Yesterday was an historic day. The EEOC released a ruling stating, “[i]ndeed, we conclude that sexual orientation is inherently a “sex-based consideration,” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The full text of the ruling is linked here (highlights are at the end of the email for quick reference):

https://s3.amazonaws.com/s3.documentcloud.org/documents/2167512/complainantvfoxx.pdf

During Monday’s board meeting it was mentioned that in the state of Arkansas it was legal to fire someone for being gay. As of yesterday, the controlling precedent by the EEOC makes it illegal to discriminate on the basis of sexual orientation. This is fantastic news. We can now add “Sexual Orientation” to the list of protected attributes that it would be plainly illegal to discriminate against. Pregnancy (see here), Gender Identity (see here), Military/Veteran status (see here and here), Familial Status (see here), Genetic Information (see here), and now Sexual Orientation (see here, again) must be added to our out-of-date policy to reflect the federal law in a way that is clear to all employees and potential employees.

As you well know, it is illegal for public school districts (governmental actors) to violate (i.e., coerce or compel) an individual’s right to exercise her or his Constitutional liberties as a condition to employment, promotion, and all other benefits (including health) to be enjoyed. Now that the EEOC has ruled that it is illegal to discriminate against someone based on her/his sexual orientation, the school board must recognize that and bring the current policy in line with the law. Each of the aforementioned attributes must also be enumerated in the updated policy.

It is important to recognize that the current policy is not in compliance with the law as it relates to military/veteran status, familial status, and genetic information. What happens if the school district does not comply and update the policy? It means that the school district has NO DEFENSE against claims of discrimination brought by someone based on sexual orientation (or the other aforementioned attributes) since there is no policy stating that the school district does not refrain from discriminating. If a claim is made against the school district under Title 42, Section 1983 of the U.S. Code, the plaintiff will have to prove only two things: that she/he was subjected by school district to conduct under the “color of state law,” and that the conduct of the school district deprived that plaintiff of the rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution. The plaintiff would have to show that the federal law was designed and clearly intended to benefit the plaintiff; here the intention EEOC. In addition, the plaintiff could also file a claim based on Title VII, which prohibits employment discrimination. If a suit is brought under Section 1983 and/or Title VII , the school district will be in an INDEFENSIBLE position since it is federal law that these attributes must be protected and the school district’s failure to provide a legal EEO policy for its employees does not have a “substantial relationship to an important state interest.” Therefore the school district will be responsible for any and all relief prescribed in Section 1983, including punitive damages, compensatory damages, equitable relief, and attorney’s fees (see here and a great article describing how Section 1983 litigation works can be found here). If you do not have a policy that clearly directs employees of the school district not to engage in discrimination by enumerating the protected attributes, then the school district will have no defense to any claims brought by an individual.

Who stands to win if the policy is not updated and brought into compliance with the law? We can think of only one entity – the law firm engaged by the school district, which will be paid regardless of the outcome of the case(s).

We recommend the board update the policy to read as follows to ensure clarity for all stakeholders and eliminate any confusion: “The Bentonville Board of Education shall conduct the school system on a non-discriminatory and non-segregated basis. In the employment of personnel, the Board will not discriminate against any employee or applicant for employment because of race, religion, color, sex, gender, national origin, age, genetic information, military/veteran status, familial status, disability, pregnancy, gender identity, sexual orientation, or any other attribute protected by law.”

We also urge the Board to add information about “how to file a grievance” under the Human Resources section to further strengthen any defense the district may use against a claim.

Additionally, we would like to know what type of training is provided to those making employment decisions (i.e. the school board members, administrators, and human resources) and urge the board to update that training to include all of the above attributes (and consequences for not adhering to the policy) in light of this new ruling by the EEOC. In addition, given the conversations had by board members, guidance counselors, teachers, and staff, we would highly recommend special training for all district employees related to the updated policy as well as a substantial anti-bullying training based on the definition provided by the State of Arkansas for all staff, teachers, administrators, and board members.

We are including representatives from other school districts on this message because we feel this is a best practice that should be adopted by all local districts.

Sincerely,
Amy Gillespie & Gretchen Bellamy
Co-founders, Bentonville Public Schools Citizens for Equality