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A. Unlawful Employment Practices.

1. Employers--Discrimination. It shall be an unlawful employment practice for an employer to fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment on the basis of such individual’s sexual orientation.

2. Employers--Segregation. It shall be an unlawful employment practice for an employer to limit, segregate or classify employees or applicants for employment in any manner which would deprive or tend to deprive any individual of employment opportunities, or adversely affect their employment status on the basis of such individual’s sexual orientation.

3. Employment Agencies. It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment any individual, or otherwise to discriminate against any individual on the basis of such individual’s sexual orientation.

4. Labor Organizations. It shall be an unlawful employment practice for a labor organization to fail or refuse to include in its membership or to otherwise discriminate against any individual; or 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 such individual of employment opportunities, or otherwise adversely affect their status as an employee or as an applicant for employment on the basis of such individual’s sexual orientation.

5. Job Training. It shall be an unlawful employment practice for an employer, an employment agency or a labor organization to discriminate against any individual in admission to, or employment in, any program established to provide apprenticeship or other training or retraining, including any on-the-job training program on the basis of such individual’s sexual orientation.

6. Advertising. It shall be an unlawful employment practice for an employer, employment agency or a labor organization to print, publish, advertise or disseminate in any way, any notice or advertisement with respect to employment, membership in, or any classification or referral for employment or training by any such organization, which indicates an unlawful discriminatory practice.

B. Subterfuge. It shall be unlawful to do any of the acts mentioned in subsections (A)(1) through (A)(6) of this section for any reason that would not have been asserted but for the sexual orientation of any individual.

C. Bona Fide Occupational Qualification not Prohibited--Affirmative Defense.

1. Bona Fide Occupational Qualification. Nothing contained in this section shall be deemed to prohibit selection or rejection based upon a bona fide occupational qualification.

2. Affirmative Defense. In any action brought under Section 13.28.090 of this chapter (enforcement), if a party asserts that an otherwise unlawful discriminatory practice is justified as a bona fide occupational qualification, that party shall have the burden of proving: (a) that the discrimination is in fact a necessary result of a bona fide occupational qualification; and (b) that there exists no less discriminatory means of satisfying the occupational qualification.

D. Exceptions. It shall not be unlawful discriminatory practice for an employer to observe the conditions of a bona fide seniority system or a bona fide employee benefit system, provided such systems or plans are not a subterfuge to evade the purposes of this chapter; provided, further, that no such system shall provide an excuse for failure to hire any individual because of sexual orientation.

E. Notices.

1. Requirements. Every employer with fifteen or more employees, every labor organization with fifteen or more members, and every employment agency shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment and members are customarily posted, the following notice: "Discrimination on the basis of sexual orientation is prohibited by law. Berkeley Municipal Code, Sections 13.28.010-13.28.100."

2. Alternate Compliance. Notwithstanding the above, the provisions of this subsection may be complied with by adding the words "sexual orientation" to all notices required by federal or state law, and indicating on the notice that discrimination on the basis of sexual orientation is prohibited by the Berkeley Municipal Code, Sections 13.28.010 through 13.28.100.

3. Penalty for Noncompliance. Wilful violations of this subsection shall be punishable by a fine of not more than fifty dollars for each offense. This is the exclusive remedy for violations of this subsection. (Ord. 5106-NS § 1 (part), 1978)