New Houston Equal Rights Ordinance Covers LGBTs and Contains Potential Criminal Penalties

June 20, 2014 E-Alerts

On May 28, 2014, Mayor Annise Parker signed into effect the Houston Equal Rights Ordinance, known as HERO. The ordinance is scheduled to take effect on Friday, June 27, 2014. It creates a new equal rights chapter in the municipal code which addresses discrimination in city employment, city contracting, housing, public accommodations and private employment.

HERO expands the “protected classifications” beyond those currently protected by federal or Texas state law, including sexual orientation, gender identity, familial status, and marital status. The stated purpose of the ordinance is to ensure Houston is “free of any type of discrimination based on sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability,sexual orientation, genetic information, gender identity, or pregnancy.” The ordinance applies to privately owned and operated public accommodations, including restaurants, bars, entertainment venues and places of public amusement, and hotels and motels. Religious organizations and bona fide private clubs are exempted from HERO.

During its first year, HERO applies to most private employers with at least 50 employees. In its second year, the threshold lowers to 25 employees, and in its third year, the threshold becomes 15 employees. The term “employee” is defined as “an individual employed by an employer.” This definition purports to include all employees of an employer—not just employees employed in Houston— whether full-time, part-time, or temporary.

HERO’s anti-retaliation provision appears limited to any person who files a complaint under HERO (and therefore appears not to cover employees who make internal complaints of discrimination).

A person can file a complaint with the Office of the Inspector General at the City Attorney’s office within 180 days of the alleged violation. See Section 17-62. If the complaint states a claim which falls within the jurisdiction of the EEOC or the Texas Workforce Commission, the Office of the Inspector General will forward the complaint to the appropriate agency. If the Inspector General determines that a violation has occurred, the Inspector General is required to attempt conciliation. If no resolution is achieved, the Inspector General must refer the complaint to the City Attorney’s office for further action.

Violation of HERO is a Class C misdemeanor, punishable in municipal court by a fine of between $250.00 and $500.00 per violation. Each day of a continuing violation is a separate violation. The maximum aggregate of all fines relating to the same complaint is $5,000.00. The fine is paid to the City of Houston, not the aggrieved employee. A person prosecuted for a violation of HERO will be entitled to a trial by jury in municipal court. Because HERO’s prohibitions apply to “persons” rather than “employers,” supervisors may be personally liable for violations.

HERO does not create a private cause of action for employees, nor does it expand any civil remedies under federal or Texas law.  Similar to the arrangement between the Texas Workforce Commission and the EEOC, we anticipate that the Office of the Inspector General will enter into a work-sharing agreement with the Texas Workforce Commission and the EEOC.  In other words, receipt of charges by the Office of the Inspector General will automatically initiate the proceedings of both the Texas Workforce Commission and EEOC for the purposes of Title VII and the Texas Labor Code.

Employers doing business in Houston should update their anti-discrimination and anti-harassment policies to address the expanded “protected characteristics” covered by HERO. Employers also should ensure that supervisors and human resources professionals are trained on the unique issues which arise in the workplace related to these new protected categories.

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