Voters in Houston will decide the fate of the controversial Houston Equal Rights Ordinance (HERO) when they go to the polls in November. On August 5, the Houston City Council decided to put the measure on the ballot after the Texas Supreme Court ruled on July 24 that the council had to either repeal the ordinance or put it to the voters.
The city council passed HERO in May 2014, but the ordinance was the target of a petition drive to have it repealed. At first, the city secretary said opponents of the measure had enough signatures to force a vote. Later, many of the signatures were thrown out, but the supreme court decided the petition was properly certified.
The ordinance prohibits discrimination based on sexual orientation and gender identity in addition to a list of other characteristics—sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, genetic information, and pregnancy.
The law took effect June 27, 2014, covering employers with 50 or more employees. Then, on June 27, 2015, it covered employers with 25 or more employees.
Currently, neither Texas nor federal law explicitly protects employees from discrimination based on sexual orientation and gender identity. However, several cities in Texas do have sexual orientation and gender identity discrimination laws, according to Jacob Monty, a coeditor of Texas Employment Law Letter and an attorney with Monty & Ramirez, LLP in Houston. He says that if Houston repeals its ordinance, it will be the only one of Texas’ five largest cities without a nondiscrimination policy protecting sexual orientation and gender identity.
Monty says that as HERO currently reads, aggrieved parties may file a complaint with the Houston office of inspector general within 180 days of a perceived violation. Complaints alleging discrimination based on a category already protected by state or federal law will be referred to the Texas Workforce Commission or the Equal Employment Opportunity Commission (EEOC). Other complaints will be investigated by the inspector general.
Monty says employers found in violation of HERO may face a fine of up to $5,000. Unlike state and federal laws, HERO doesn’t create a private claim allowing individuals to file their own lawsuits.
Monty says many employers, including the majority of Fortune 500 companies, already have policies that prohibit sexual orientation and gender identity discrimination. He says businesses should consider proactively offering those protections. Also, many Houston employers may have offices in cities and states that already prohibit sexual orientation and gender identity discrimination, so he cautions employers to review state and local laws to make sure their employee handbooks and policy manuals are in compliance.
Monty also advises employers to train HR managers and supervisors in effectively handling internal complaints of discrimination. He says effectively investigating and managing complaints can reduce an employer’s exposure to fines and lawsuits.
For continuing coverage of HERO’s status, see Texas Employment Law Letter.