Without Teeth, Are Nondiscrimination Laws Effective?

Attorney Aaron Johnson says the city's nondiscrimination ordinance "is a good thing, but it's probably not the best way for an employee to get justice." (Photo by John Anderson)

A co-worker pulled down his underwear and forced his crotch toward Jaidro Roque's face. For Roque, an openly gay man, it was far from the first time he'd been on the receiving end of such behavior. The repeated sexual and verbal harassment – from derogatory slurs to indecent exposure – was part of what Roque says was a hostile work environment at 888 Pan Asian Cuisine in South Austin.

Roque bypassed Austin's discrimination complaint process – largely due to the city's weak enforcement power ­– and instead filed a federal suit against his employers. Coupled with failure to pay minimum wage, the suit alleges Roque faced harassment because he did not "conform to gender stereotypes." 888 co-owner Kevin Le contends the allegations are false and says he is confident that the court will find in their favor.

Passing ordinances gradually over time, Austin has maintained local nondiscrimination protections in housing, employment, and public accommodation for sexual orientation for years, adding gender identity to the local NDO in 2004. Despite these strides, with no foreseeable statewide or explicit national LGBTQ protections in place, local ordinances only go so far in penalizing offenders.

"The city ordinance is a good thing, but it's probably not the best way for an employee to get justice because there's not much that they can do for an employee, other than a monetary fine," says Aaron Johnson, Roque's attorney and a lawyer with the Equal Justice Center. While federal suits can result in reinstatement, a hefty payout for lost wages, and damages for what a plaintiff has suffered, the local ordinance results only in a class C misdemeanor, punishable by a fine not to exceed $500. On the other hand, submitting an Equal Employment Opportunity Commission (EEOC) complaint and filing suit costs considerable time and expense, leaving those without resources to turn to the city for help or not act at all.

Moreover, Title VII of the Civil Rights Act does not explicitly include sexual orientation or gender identity in its list of protected classes. On the bright side, the EEOC has interpreted discrimination against those two classes as a form of sex discrimination in recent years, but that's not binding in federal court. Johnson contends that the issue – facing no prospect of progress in an obstinate Congress – may in the near future establish a circuit court split and eventually be resolved by a U.S. Supreme Court showdown. He says that even after the 2015 Supreme Court Obergefell ruling enshrining marriage equality as a constitutionally protected right (see "Marriage for Everyone," July 3, 2015), "employers can still get away with discriminating against the gay community and do it legally in a lot of situations." For now, attorneys like Johnson are making the case against gender stereotyping, leaving a lot of discrimination cases on the sidelines.

"We all would prefer that the federal government or state provide the protections for the LGBT population, but that's certainly not going to happen in Texas anytime soon, so that's why cities have to enact their own rules because no one at the Legislature is going to," says Terri Burke, ACLU of Texas executive director. "The municipal ordinances don't have the same breadth or enforcement power as a federal or state law but do offer an important statement about the city's values and a quick mechanism to investigate and resolve complaints."

In an effort to beef up the local protection, Mayor Pro Tem Kathie Tovo has prompted a review of the city's nondiscrimination complaint process with a resolution passed by City Council in March that compels the city manager to study all the anti-discrimination policies and, by June 30, update definitions of discrimination, harassment, and retaliation (see "Council Approves Workplace Nondiscrimination Measure," March 25). It also initiates an external audit of those complaint investigations and a report back to Council on investigatory best practices. While the resolution was spurred by complaints of gender discrimination, Tovo tells the Chronicle it's certainly meant to strengthen the process for all forms of discrimination, including sexual orientation and gender identity. "During the process of reviewing the cases that were brought to our attention, it became clear that while the city has clear policies and protocols for cases pertaining to demotion, discharge, failure of promotion, and disciplinary probation, no similarly clear policies and protocols exist for cases of alleged discrimination," she says.

While the local NDO may undergo an improvement, statewide reform seems further out of reach. Chuck Smith of Equality Texas says the group is working with potential bill authors on legislation that would protect all LGBTQ Texans from discrimination, another reminder that despite the U.S. Supreme Court marriage equality ruling, much progress still awaits the LGBTQ community. In the meantime, Roque (who goes to trial in July) and others are finding a way to combat injustice with the limited tools at their disposal.