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By: Tim Holdsworth
In one of the most closely watched votes on Election Day 2015, citizens of Houston overwhelmingly voted to repeal the Houston Equal Rights Ordinance (“HERO”). Passed by the city council last year, the ordinance augmented federal and state laws by prohibiting discrimination against employees on the basis of sexual orientation or transgender status. The HERO referendum drew the attention of numerous high-profile individuals. Those supporting the ordinance included President Obama, Hillary Clinton, and actress Sally Field. Those opposing it included Texas Governor Greg Abbott, Lieutenant Governor Dan Patrick, and former Houston Astro Lance Berkman. Berkman, whom you may remember as a star on Astros teams during the last decade and whose baseball cards are hopefully collecting value in my parents’ basement, even shot a divisive commercial in opposition to the ordinance.
Whatever your view on HERO or the vote’s outcome, employers should be aware that Houston voters’ rejection of HERO runs against the current trend in employment law. A number of states prohibit discrimination on the basis of sexual orientation and gender identity. So, too, do many cities, including several major cities in Texas. In fact, while Georgia does not prohibit discrimination on these bases, the relevant city of Atlanta ordinance on private employment enumerates both sexual orientation and gender identity as protected classes.
Additionally, the EEOC takes the position, and held in a recent ruling more thoroughly discussed here, that Title VII’s sex discrimination provision prohibits discrimination against employees on the basis of sexual orientation and gender identity. Some federal courts have followed the EEOC’s position and allowed sex discrimination suits to be brought on these bases. Furthermore, despite opponents of HERO arguing that the ordinance would potentially endanger women and children to sexual predators because it allowed men dressed as women to enter women’s bathrooms, we have already discussed the EEOC’s ruling that denying a transgender employee the right to use a bathroom that is consistent with their gender identity constitutes sex discrimination under federal law.
Employers should be modifying their employment policies as necessary to comply with any local, state, or federal legislation in this trending area of the law. In fact, the EEOC declared that “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions ” is an “enforcement priority for FY2013-2016.”
Please contact us with any questions you may have about these issues or their effect on your employment policies.