How much leeway should a Salt Lake supervisor have in disciplining employees?
The answer is easy: enough leeway to give the supervisor the freedom to manage effectively but not so much that he can fire an employee for no other reason than because the employee is homosexual.How exactly to include that in an ordinance, however, is tougher. And that's only one of the questions facing the Salt Lake City Council in a compromise anti-discrimination ordinance it's now working on.
The anti-discrimination ordinance has created a furor in recent months. A version specifically prohibiting discrimination against city employees because of their sexual orientation passed in December but was revoked a month later amid much bickering and contention.
Three council members wanted specific protected classes in the ordinance, while four didn't, saying all employees should be protected instead of singling some out.
As a practical matter, the compromise version of the ordinance implicitly includes protected classes (though not the controversial "sexual orientation" class) without coming right out and saying it, because it incorporates by reference state and federal law, which do say it. The body of the ordinance prohibits discrimination based on anything other than the broad term "job-related criteria."
City attorney Roger Cutler drafted the compromise ordinance at the request of the council.
As part of its tinkering, the council is likely to junk Cutler's language stating an employee could be disciplined or fired if the supervisor's action was "rationally" based on job-related criteria. The council will likely substitute that word with "reasonably," which legally gives the supervisor less discretion in employee discipline matters - and a judge more overview power after the fact.
"This nuance, if you will, has substantial significance," said Councilman Tom Rogan.
Another sticking point is whether "immutable" characteristics should be viewed as not being job-related criteria. Courts, as well as the general public, differ on whether homosexuality is immutable (meaning the person has no choice - it's in his genes) or not.
Cutler said taking out the word renders the context in which it appears overly broad and legally questionable, so the council may end up cutting the entire section.
There's some question whether the watered-down compromise ordinance is better than what exists now, but the council is anxious to pass something, anyway.
"I feel a moral obligation to put an ordinance in place," said Councilman Carlton Christensen.
Notwithstanding the gradual progress to a middle ground, Councilwoman Deeda Seed, for one, is sticking to her guns and still pushing for protected classes.
"We're backing into this," she said. "We're skirting the issue."