by Jacob Monty
Monty & Ramirez, LLP
On November 3, Houston voters decided the fate of a controversial equal rights law by voting against the adoption of Proposition 1, the Houston Equal Rights Ordinance (HERO).
The ordinance attempted to prohibit discrimination based on sexual orientation or gender identity in city employment, services, and contracts; public accommodations; and private employment and housing. In addition, HERO would have banned discrimination based on sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, genetic information, and pregnancy.
What was the purpose of HERO?
Currently, neither Texas nor federal law explicitly protects employees from discrimination based on sexual orientation or gender identity. However, several cities in Texas have laws prohibiting sexual orientation and gender identity discrimination. As a result of the vote, Houston will be the only one of Texas’ five largest cities without a policy banning sexual orientation and gender identity discrimination.
HERO would have provided aggrieved parties the ability to file a complaint with the Houston Office of Inspector General within 180 days of a perceived violation. Complaints alleging discrimination based on a characteristic already protected by state or federal law would be referred to the Texas Workforce Commission or the Equal Employment Opportunity Commission (EEOC). Since neither state nor federal law explicitly covers sexual orientation or gender identity claims, the Houston inspector general would investigate those claims.
Employers found in violation of HERO would face a Class C misdemeanor charge and a fine ranging from $250 to $500 for each offense, with a $5,000 maximum for each complaint. Charges would be heard in municipal court, and employers would have the right to a jury trial. Unlike state and federal laws, HERO did not create a private claim that would allow individuals to file their own lawsuits.
Despite public misconceptions, HERO did not require companies to provide separate restroom facilities for transgender customers or employees. However, the proposition would have barred businesses from discriminating against individuals regarding restrooms.
History of HERO
The Houston City Council passed HERO in May 2014, but the ordinance was challenged by a petition drive demanding its repeal. At first, the city secretary said opponents of the measure had gathered enough signatures to force a vote. Later, many of the signatures were thrown out, but the Texas Supreme Court decided the petition was properly certified.
On July 24, 2015, the supreme court suspended HERO, ruling that the city council had to either repeal the ordinance by August 24 or put it on the November ballot. In response, the city council decided to place HERO’s future in the hands of voters.
HERO opponents, identified as the Campaign for Houston, labeled the proposition the “bathroom ordinance” and garnered support through extensive ad campaigns targeting transgender individuals—specifically, transgender women. The focus on the transgender community came in response to a section of the proposition that allowed people to use the restroom or locker room that best fit their gender identity. Although the section was ultimately removed, it led to the “bathroom ordinance” label and the opponents’ message: “No men in women’s bathrooms!” The men HERO’s opponents referred to are transgender women—i.e., individuals who were born male but have the gender identity of a woman. Those individuals would have been protected from discrimination under HERO.
Despite national support for the ordinance, the ballot results exemplify the strength and success of the anti-HERO campaign. The proposition received endorsements from prominent companies, leaders, and celebrities, but it failed by a vote of 62 percent to 38 percent.
Corporate supporters of HERO included General Electric, Hewlett Packard, BASF and EMC Corporation, the Greater Houston Partnership, Dow Chemical, the Houston Hispanic Chamber of Commerce, and the Greater Houston Convention and Visitors Bureau. Apple endorsed the proposal by stating that it “support[s] Proposition 1 as it sends a clear message that Houston is focused on a future of inclusion, diversity, and continued prosperity.”
Celebrity supporters of the ordinance included Sally Field, Jesse Tyler Ferguson, Eva Longoria, Matthew Morrison, Matt Bomer, Greg Louganis, Chris Kluwe, Jason Collins, and Michael Sam. Political leaders, including Bernie Sanders and Hillary Clinton, also showed their support. The White House gave its stamp of approval, stating, “We’re confident that the citizens of Houston will vote in favor of fairness and equality.”
Takeaways
Although HERO failed, it would be wise for Houston employers to act as though it passed and treat sexual orientation and gender identity as protected characteristics. Houston may not have adopted HERO, but federal law is moving toward more expansive antidiscrimination protections. Proactive employers should do the same.
Jacob M. Monty is the managing partner of Monty & Ramirez, LLP and a coeditor of Texas Employment Law Letter. He can be reached at jmonty@montyramirezlaw.com.