Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: Following opposition to this ordinance, the Texas Supreme Court ordered the city to either repeal the ordinance or place it on the November ballot. To this end, the ordinance was reintroduced as Proposition 1. On November 3, 2015, Houston voters rejected this ballot initiative, so the ordinance is no longer in force.
On May 28, 2014, the Houston City Council passed the city's first ordinance to ban discrimination in private workplaces, and to expand the types of prohibited discrimination for employers subject to this ordinance, as noted below. Houston is one of the last major cities in the United States to adopt such an ordinance, and joins Texas cities Austin, Dallas, El Paso, Fort Worth, and San Antonio, which have already adopted their own similar ordinances. In addition to banning discrimination in the workplace, the Houston ordinance applies to housing, public city employment, and city contracting. The ordinance goes into effect on June 27, 2014.
What Employers Need to Know About the New Ordinance
The new Houston ordinance will apply to companies with 50 or more employees, and exempts religious institutions. This differs from most federal employment anti-discrimination laws, which apply to companies with as few as 15 employees—or 20 in the case of the Age Discrimination in Employment Act (ADEA).
While the local ordinance incorporates those protected categories already recognized under state and federal private workplace anti-discrimination laws, the ordinance extends the ban on private workplace discrimination to four new categories that were not previously recognized under laws applicable to private employers in Texas. In particular, while the ordinance reiterates the long-standing ban on workplace discrimination on the basis of sex, race, color, ethnicity, national origin, age, military status, religion, disability, genetic information, and pregnancy, it also recognizes familial status, marital status, sexual orientation, and gender identity as categories that are protected from workplace discrimination.1
The ordinance defines these protected categories as follows:
Familial Status means the status of a person resulting from being domiciled with an individual younger than 18 years of age in regard to whom the person:
- Is the parent or legal custodian; or
- Has the written permission of the parent or legal custodian to live with the individual; or
- Is in the process of obtaining legal custody.
Gender Identity means an individual’s innate identification, appearance, expression, or behavior as either male or female, although the same may not correspond to the individual’s body or gender assigned at birth.
Sexual Orientation means the actual or perceived status of a person with respect to his or her sexuality.
Although the ordinance does not define marital status discrimination, it would be reasonable to view the ordinance as intended to prohibit discrimination on the basis of a person's marital status, including bias against and presumptions about an individual based on the fact that he or she is married, single, or divorced.
Administrative Enforcement of the Ordinance
Under the terms of the ordinance, an employee or applicant can file a complaint with the Office of the Inspector General at the City Attorney's Office. The statute of limitations is 180 days following the alleged violation. If the complaint states a claim that is within the jurisdiction of either the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission, the Office of the Inspector General will refer the case to the appropriate agency. Under the terms of the ordinance, therefore, the Office of the Inspector General should only investigate complaints that implicate those protected categories not already covered by federal and state private employment anti-discrimination laws.
The ordinance contemplates a one-year maximum period for the Office of the Inspector General to complete its investigation, and arms investigators with subpoena power to compel companies to produce documents and/or witnesses as part of the investigative process. Investigators are also required to engage affirmatively in conciliation if the investigation reveals a violation of the ordinance. In the event conciliation fails, the Office of the Inspector General is directed to refer the matter to the City Attorney, who can then pursue Class C misdemeanor criminal charges that carry the potential for fines not to exceed $5,000 per violation.
Significantly, the ordinance does not provide any civil enforcement mechanism. Unlike the enforcement provisions in Title VII of the Civil Rights Act of 1964 (Title VII), the ADEA, the Americans with Disabilities Act (ADA), the Texas Commission on Human Rights Act (TCHRA), and other federal and state anti-discrimination laws, individual employees may not bring suit against their employers for alleged violations of the ordinance. While the ordinance carries the potential for a Class C misdemeanor fine of up to $5,000 per violation, the lack of a civil enforcement provision and the fact that Title VII, the ADEA, the ADA, and the TCHRA provide an avenue for employees to sue employers in state or federal court suggests that the new ordinance is unlikely to increase discrimination litigation for employers. It may, however, result in an increase in administrative charges filed against a company, particularly with respect to claims involving alleged sexual orientation, gender identity, and marital and familial status discrimination.
Practical Steps for Covered Employers
Because the EEOC has traditionally taken the position that the prohibitions against sex discrimination under Title VII extend coverage to related statuses like marital status, sexual orientation, gender identity, and familial status, many Houston employers may already have policies in place and have trained management to recognize issues implicating any of these protected categories. For those employers subject to the ordinance that have not done so already, however, employee handbooks and policies should be revised to clarify that discrimination and/or harassment on the basis of familial status, marital status, gender identity, and/or sexual orientation—in addition to other protected categories already recognized under federal and state law—will not be tolerated.
To the extent employers have not already updated their policies or specifically trained human resources personnel, managers, and supervisors on anti-discrimination and anti-harassment practices with regard to the new protected categories, employers should do so now in anticipation of the new ordinance. Gender identify and familial status discrimination will likely require employers to provide additional training to help management better understand some of the particular concerns and issues that arise in these arenas.
1 Many other states and localities across the United States already expressly recognize marital status, sexual orientation, gender identity, and familial status as protected categories for private employment purposes. While the Houston ordinance has garnered considerable publicity over the protections it extends to sexual orientation and gender identity, familial status is in fact the least commonly recognized protected category in private employment anti-discrimination laws throughout the United States, making this ordinance one of the few to extend protections to individuals on account of their childcare responsibilities.
Suzanne Potter-Padilla is an Associate, and David Jordan is a Shareholder, in Littler's Houston office. If you would like further information, please contact your Littler attorney at 1.888.Littler or firstname.lastname@example.org, or Ms. Potter-Padilla at email@example.com, or Mr. Jordan at firstname.lastname@example.org.