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For Labor Day, A Look At LGBT Worker Protections In Texas

With no federal or state protections, do LGBT-friendly employer policies mean anything?

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Houston’s Equal Rights Ordinance, or HERO, remains on indefinite hold, as opponents take their latest challenge to the Texas Supreme Court.

HERO would add sexual orientation and gender identity to the list of groups protected against discrimination in the workplace and other areas.

More companies, institutions, and cities in Texas are expanding their anti-discrimination policies to include lesbian, gay, bi-sexual, and transgendered, or LGBT.

But what do those policies really mean when there are no specific, comprehensive anti-gay discrimination laws at the state or federal level?

“Unfortunately, in Texas and many other states, employer policies are generally not regarded as binding on the employer,” says Professor Richard Carlson, who teaches employment law at South Texas College of Law.

There are no guarantees an employer will follow its own policy, “unless, in the very rare case, you can prove that policy was elevated to the rank of an enforceable contract. In Texas, that’s very hard to do. In some other states, that might be different,” says Carlson.

statewide_employment_5-2014-screengrab400-w.png
Orange states prohibit discrimination based on sexual orientation and gender identity. Purple states prohibit discrimination based on sexual orientation only. Map is provided by the Human Rights Campaign. Click to enlarge the view.

Texas is one of 29 states where it’s still legal to fire someone just for being gay. That’s according to the advocacy group Human Rights Campaign. And that can happen regardless of a company’s non-discrimination policy. Houston attorney Kristen Capps practices employment law. In her 10 years, she hasn’t handled a case in which a client was fired specifically for his or her sexual orientation.

“Particularly if there’s any possibility that there might be discrimination there. I think discrimination tends to be more subtle. I think that you have to find the facts that give rise to an inference that it’s discrimination. And that’s far more common than the situation you just described,” says Capps.

When someone believes he or she has an anti-gay discrimination case, there are a couple of ways it can be pursued. One angle is Section VII of the federal Civil Rights Act, which bans discrimination on the basis of sex. However, Section VII does not include the words “sexual orientation.”

“Although there are some categories of sex discrimination that might overlap with sexual orientation discrimination, and those might be actionable. So it’s really a question of screening those cases very carefully for fact patterns,” says Capps.

Those facts can be difficult to gather and difficult to prove. Also, it’s unlikely plaintiffs will find the kind of relief their seeking in state or federal courts.

That’s where local laws can help. Houston’s Equal Rights Ordinance would simplify anti-gay employment discrimination claims. Instead of an employee filing a claim in a state or federal court, the process would begin at the local level. The city would charge the offending company with a misdemeanor, punishable by a $500 fine.

STCL Professor Richard Carlson believes the potential for public shame would be a compelling motive for businesses to protect their employees.

“From the employer’s point-of-view, maybe we’d just like to get this out of the way quietly at the local level, before this goes any farther. The employee may, or may not be happy with the result. But I suspect a lot of employers would rather avoid public prosecution for violating this law, even if fine is only $500 dollars,” says Carlson.

If that doesn’t work, the case would go to the Equal Employment Opportunity Commission, which could allow the employee to sue. Or the EEOC could sue on the employee’s behalf.

Both Carlson and Capps believe Houston’s Equal Rights Ordinance will survive its current legal challenges and eventually take effect.

 

Correction: A previous version of this story said attorney Kristen Capps had been practicing for 20 years. That has been corrected to 10 years.

 

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David Pitman

David Pitman

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David was HPM’s local Morning Edition host from 2009 to 2020 -- when he was moved to the position of Technical Director of Houston Matters with Craig Cohen, and Town Square with Ernie Manouse. David has extensive public and commercial broadcast journalism and production experience dating back to 1993 –...

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