Late in the evening on May 28th, the Houston City Council passed a city ordinance that prohibits discrimination against employees on the basis of sexual orientation or trans-gender status. The ordinance also prohibits discrimination on the basis of race, sex and other already protected classifications, but the real point of the measure was clearly to add to (not duplicate) the already existing federal and state laws. The ordinance applies to virtually all employers with more than 15 employees who operate within the city of Houston, although it does have an exception for religious institutions and private clubs.
Violators can be fined up to $5,000 but there is no private right to sue under the law, like there is for other types of discrimination under state and federal law. Importantly, violators may be prosecuted criminally for discrimination, which is a Class C misdemeanor. Complaints must be filed with the city within 180 days and can be investigated by the City’s Inspector General. The full text of the ordinance can be found here.
My take on the ordinance is that it does not add very much to existing law. Although sexual orientation was not already a protected classification, many federal courts (including some in Houston) have allowed cases to be brought by homosexual employees under Title VII for sex discrimination. Such cases apply a “gender stereotyping” analysis to bring sexual orientation discrimination under the umbrella of sex discrimination. Further, many other cities in Texas, such as Austin, Dallas and Fort Worth already have such ordinances, so most large Texas employers have already modified employment policies to comply. That said, adding another level of bureaucracy to employment law is never a good thing, and we will have to wait and see exactly what impact the ordinance actually has in the Houston area.
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