[Amended 11-17-2020 by Ord. No. O-20-35]
It is hereby declared to be the policy of the City of Hagerstown,
in the exercise of its police power for the protection of the public
safety, public health and general welfare, for the maintenance of
business and good government and for the promotion of the City's
trade, commerce and manufacturing, to assure all persons equal opportunity
in receiving employment and in all labor management-union relations
regardless of gender, race, color, religion, sex, sexual orientation,
gender identity or expression, age, disability, marital status, citizenship,
national origin, genetic information, or any other protected characteristic
protected by law unrelated in nature and extent so as to reasonably
preclude the performance of the employment and, to that end, to prohibit
discrimination in employment by any person, group, labor organization,
organization or any employer or his agents.
For the purpose of this article, the following terms shall have
the meanings indicated:
An individual employed by an employer, except that employee
does not include any person elected to public office or any person
chosen by an officer to be on the officer's personal staff, an
appointee in the policy-making level or an immediate advisor with
respect to the exercise of the constitutional or legal powers of the
office. The exception set forth in the preceding sentence does not
include employees subject to the state or local civil service laws.
A person engaged in an industry or business who has 15 or
more employees for each working day in each of 20 or more calendar
weeks in the current or preceding calendar year and any agent of such
a person. Such term does not include the City to the extent as may
be provided in this article, but such term does not include a bona
fide private membership club, other than a labor organization, which
is exempt from taxation under § 501 (c) of the Internal
Revenue Code of 1954.
Any person regularly undertaking, with or without compensation,
to procure employees for an employer or to procure for employees opportunities
to work for an employer, and includes an agent of such a person. Such
term shall not include an agency of the United States or an agency
of the State of Maryland or political subdivision thereof, except
that such term shall include the United States Employment Service
and the system of state and local employment services receiving federal
assistance.
A labor organization engaged in an industry and any agent
of such an organization, and includes any organization of any kind,
any agency or employee representation committee, group, association
or plan so engaged in which employees participate and which exists
for the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours or other terms
or conditions of employment and any conference, general committee,
joint or system board or joint council so engaged which is subordinate
to a national or international labor organization.
Includes one or more individuals, labor unions, partnerships,
associations, corporations, legal representatives, mutual companies,
joint-stock companies, trusts, unincorporated organizations, trustees,
trustees in bankruptcy or receivers or any other legal entity.
Includes all aspects of religious observances and practice,
as well as belief, unless an employer demonstrates that he is unable
reasonably to accommodate to an employee's or prospective employee's
religious observances or practice without undue hardship on the conduct
of the employer's business.
A.
It shall be an unlawful employment practice:
(1)
For an employer:
(a)
To fail or refuse to hire or to discharge any individual with
respect to his compensation, terms, conditions or privileges or employment
because of such individual's gender, race, color, religion, sex,
sexual orientation, gender identity or expression, age, disability,
marital status, citizenship, national origin, genetic information,
or any other protected characteristic protected by law unrelated in
nature and extent so as to reasonably preclude the performance of
the employment.
(b)
To limit, segregate or classify his employees or applicants
for employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his status as an employee because of the individual's gender,
race, color, religion, sex, sexual orientation, gender identity or
expression, age, disability, marital status, citizenship, national
origin, genetic information, or any other protected characteristic
protected by law unrelated in nature and extent so as to reasonably
preclude the performance of the employment.
(2)
For an employment agency to fail or refuse to refer for employment
or otherwise to discriminate against any individual because of his
gender, race, color, religion, sex, sexual orientation, gender identity
or expression, age, disability, marital status, citizenship, national
origin, genetic information, or any other protected characteristic
protected by law unrelated in nature and extent so as to reasonably
preclude the performance of the employment or to classify or refer
for employment any individual on the basis of his gender, race, color,
religion, sex, sexual orientation, gender identity or expression,
age, disability, marital status, citizenship, national origin, genetic
information, or any other protected characteristic protected by law
unrelated in nature and extent so as to reasonably preclude the performance
of the employment.
(3)
For a labor organization:
(a)
To exclude or to expel from its membership or otherwise to discriminate
against any individual because of his gender, race, color, religion,
sex, sexual orientation, gender identity or expression, age, disability,
marital status, citizenship, national origin, genetic information,
or any other protected characteristic protected by law unrelated in
nature and extent so as to reasonably preclude the performance of
the employment.
(b)
To limit, segregate or classify its membership or to classify
or fail or refuse to refer for employment any individual in any way
which would deprive or tend to deprive any individual of employment
opportunities or would limit such employment opportunities or otherwise
adversely affect his status as an employee or an applicant for employment
because of such individual's gender, race, color, religion, sex,
sexual orientation, gender identity or expression, age, disability,
marital status, citizenship, national origin, genetic information,
or any other protected characteristic protected by law unrelated in
nature and extent so as to reasonably preclude the performance of
the employment.
(c)
To cause or attempt to cause an employer to discriminate against
an individual in violation of this section.
(4)
For any employer, labor organization or joint labor-management committee
controlling apprenticeship or other training or retraining, including
on-the-job training programs, to discriminate against any individual
because of his gender, race, color, religion, sex, sexual orientation,
gender identity or expression, age, disability, marital status, citizenship,
national origin, genetic information, or any other protected characteristic
protected by law unrelated in nature or extent so as to reasonably
preclude the performance of the employment in admission to or employment
in any program established to provide apprenticeship or other training.
(5)
For an employer, labor organization or employment agency to print
or cause to be printed or published any notice or advertisement relating
to employment by the employer or membership in or any classification
or referral for employment by the labor organization, or relating
to any classification or referral for employment by the agency, indicating
any preference, limitation, specification or discrimination based
on gender, race, color, religion, sex, sexual orientation, gender
identity or expression, age, disability, marital status, citizenship,
national origin, genetic information, or any other protected characteristic
protected by law. However, a notice or advertisement may indicate
a preference, limitation, specification or discrimination based on
gender, race, color, religion, sex, sexual orientation, gender identity
or expression, age, disability, marital status, citizenship, national
origin, genetic information, or any other protected characteristic
protected by law if such preference, limitation, specification, or
discrimination is a bona fide occupational qualification for employment.
(6)
For an employer to discriminate against any of his employees or applicants
for employment, for an employment agency to discriminate against any
individual or for a labor organization to discriminate against any
member thereof or applicant for membership because he has opposed
any practice made an unlawful employment practice by this article
or because he has made a charge, testified, assisted or participated
in any manner in an investigation, proceeding or hearing under this
article.
B.
Notwithstanding any other provision of this article, it is not an
unlawful employment practice:
(1)
For an employer to hire and employ employees, for an employment agency
to classify or refer for employment any individual, for a labor organization
to classify its membership or to classify or refer for employment
any individual or for an employer, labor organization or joint labor-management
committee controlling apprenticeship or other training or retraining
programs to admit or employ any individual in any such program on
the basis of his gender, race, color, religion, sex, sexual orientation,
gender identity or expression, age, disability, marital status, citizenship,
national origin, genetic information, or any other protected characteristic
protected by law in those instances where gender, race, color, religion,
sex, sexual orientation, gender identity or expression, age, disability,
marital status, citizenship, national origin, genetic information,
or any other protected characteristic protected by law is a bona fide
occupational qualification reasonably necessary to the normal operation
of that particular business or enterprise.
(2)
For an employer to establish standards concerning an employee's
dress and grooming if the standards are directly related to the nature
of the employment of the employee.
(3)
For a school, college, university or other educational institution
or institution of learning to hire and employ employees of a particular
religion if the school, college, university or other educational institution
or institution of learning is, in whole or in substantial part, owned,
supported, controlled or managed by a particular religion or by a
particular religious corporation, association or society or if the
curriculum of the school, college, university or other educational
institution or institution of learning is directed toward the propagation
of a particular religion.
(4)
For an employer, employment agency or labor organization to observe
the terms of a bona fide seniority system or any bona fide employee
benefit plan, such as a retirement pension or insurance plan, which
is not a subterfuge to evade the purposes of this article; however,
no employee benefit plan shall excuse the failure to hire any individual.
C.
Nothing contained in this article shall be interpreted to require
any employer, employment agency, labor organization or joint labor-management
committee subject to this article to grant preferential treatment
to any individual or to any group because of the gender, race, color,
religion, sex, sexual orientation, gender identity or expression,
age, disability, marital status, citizenship, national origin, genetic
information, or any other protected characteristic protected by law
of the individual or group on account of an imbalance which may exist
with respect to the total number or percentage of persons of any gender,
race, color, religion, sex, sexual orientation, gender identity or
expression, age, disability, marital status, citizenship, national
origin, genetic information, or any other protected characteristic
protected by law persons employed by any employer, referred or classified
for employment by any employment agency or labor organization, admitted
to membership or classified by any labor agency or labor organization,
or admitted to or employed in any apprenticeship or other training
program, in comparison with the total number or percentage of persons
of such gender, race, color, religion, sex, sexual orientation, gender
identity or expression, age, disability, marital status, citizenship,
national origin, genetic information, or any other protected characteristic
protected by law persons in any community, state, section or other
area or in the available work force in any community, state, section
or other area.
This article shall not apply to a religious corporation, association,
educational institution or society with respect to the employment
of individuals of a particular religion to perform work connected
with the carrying on by such corporation, association, educational
institution or society of its activities.
A.
No officer or employee of the City or a City agency, department or
board shall discriminate in the hiring or firing or discriminate in
any other manner against any person because of gender, race, color,
religion, sex, sexual orientation, gender identity or expression,
age, disability, marital status, citizenship, national origin, genetic
information, or any other protected characteristic protected by law
unrelated in nature and extent so as to reasonably preclude the performance
of the employment; provided, however, that no employment practice
not unlawful under other provisions of this article or chapter shall
be deemed as unlawful employment practice by the City.
B.
If the Commission has received reliable information from an individual
or individuals and, after a proper investigation by the Commission,
it shall be determined by the Commission that an officer or employee
of the City agency, department or board has engaged in discrimination
in hiring, firing or any other type of activity against any person
because of gender, race, color, religion, sex, sexual orientation,
gender identity or expression, age, disability, marital status, citizenship,
national origin, genetic information, or any other protected characteristic
protected by law unrelated in nature and extent so as to reasonably
preclude the performance of the employment, and if the Commission
is unsuccessful in resolving the complaint, then the Commission shall
report such act or alleged act to the Mayor, and he shall review the
case and the findings of the Commission. If the Mayor is satisfied
that an act of discrimination has taken place, he shall take such
action as he deems appropriate under the circumstances; provided,
however, that any action taken shall not be in conflict with any Charter
provisions of the City of Hagerstown, provisions of the Code of the
City of Hagerstown or any union contracts or agreements that may be
applicable. The authority of the Commission relating to discrimination
in City agencies, boards or departments is limited to investigation,
conciliation, mediation and reporting to the Mayor as provided in
this section.
