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Texas: Houston Bans Sexual Orientation Discrimination in Private Employment
 

By Susan R. Heylman  6/27/2014

Finding that “all persons living in, working in, or visiting the city are entitled to be treated with equal dignity and respect and have the right to be free from discriminatory and unequal treatment,” the Houston City Council enacted an Equal Rights Ordinance on May 28, 2014. The ordinance bans discrimination in private workplaces on the basis of sexual orientation, gender identity, familial status, and marital status. These four new classifications are added to those already protected by federal or Texas law: sex, race, color, ethnicity, national origin, age, military status, religion, disability, genetic information, and pregnancy.

In addition to prohibiting discrimination in private workplaces, the ordinance also bans discrimination on the basis of the enumerated protected classifications in housing, public accommodations, city services, city employment, and city contracting. The ordinance exempts religious institutions and private membership clubs that are exempt from taxation under 501(c) of the Internal Revenue Code, and the state, a state agency, or political subdivision.  

Definitions

Discriminate includes, but is not limited to, any intentional act or demonstration of preference or antipathy in making decisions regarding employment that adversely affect an employee’s pay, status, position, or assignment, including opportunities for overtime pay and advancement. It includes decisions regarding recruitment, job application procedures, referrals for employment, selection and hiring, appointment, compensation, promotions, demotions, transfer, retention, layoffs, recalls, training, educational opportunities, and all forms of discipline, including termination.

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: (1) is the parent or legal custodian; (2) has the written permission of the parent or legal custodian for domicile with the individual; or (3) 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 as assigned at birth.

Sexual orientation means the actual or perceived status of a person with respect to his or her sexuality.

Enforcement

The ordinance does not create a private right of action for employees. An employee who claims discrimination under a protected classification may file a complaint with the inspector general at the city attorney’s office within 180 days of the alleged violation. If the inspector general, after investigating the complaint, determines a violation of the ordinance, conciliation of the complaint should be attempted.   

If there is no resolution through conciliation, the matter will be referred to the city attorney. There are criminal penalties for violation: any person who violates the antidiscrimination provisions commits a Class C misdemeanor criminal offense, punishable in municipal court by a fine from $250-$500.

The ordinance takes effect on June 27, 2014. In its first year, the ordinance will apply to private employers with 50 or more employees. In its second year, it will apply to private employers with 25 employees or more, and in its third year, it will apply to those with 15 or more employees.

The full text of the ordinance may be viewed at http://www.houstontx.gov/equal_rights_ordinance.pdf.

Susan R. Heylman, J.D., is a freelance legal writer and editor based in the Washington, D.C., area.

 

 

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