“It is simply illogical to expect municipalities to enforce their own ordinances [prohibiting sexual orientation employment discrimination]… It is the equivalent of a fox guarding a hen house.”
By Ben M. Rose (’00). Originally published in Tennessee Law, fall 2014.
When I was a young legislative staffer in the US Congress, I met with a member of the transgender community who urged my boss to support the Employment Non-Discrimination Act (ENDA). Until that day, I had never heard of this initiative, which endeavored to eliminate all sexual orientation and related discrimination in employment throughout our country.
Some twenty years later, this legislation has yet to be enacted into law, despite seemingly favorable political winds. Because of Congress’s slow pace, many states and municipalities have taken this matter into their own hands. In Tennessee, for example, Memphis, Nashville, and Knoxville have enacted ordinances prohibiting sexual orientation discrimination for municipal employees. Voters in Chattanooga recently decided to repeal a similar ordinance.
The Chattanooga experience is fairly representative of the politics surrounding similar campaigns. Ordinance supporters claim the initiative will be the ultimate “end all, be all,” an opportunity to fill a void left by Congress’s stubborn inaction. Opponents claim the proposed ordinance will inevitably lead to more lawsuits and increased costs and headaches for already cash-strapped local governments. Neither side is ultimately correct. Regardless, as demonstrated by the voters in Chattanooga, such proposals remain controversial.
Ironically, once this type of municipal ordinance is enacted, both sides seem to be completely disinterested in how it will be enforced, if at all. The stakeholders would be well served to focus at least as much effort on enforcement of the ordinance once it is enacted as they did on the question of whether to adopt it in the first place. In my opinion, it is simply illogical to expect municipalities to enforce their own ordinances of this kind. It is the equivalent of a fox guarding a hen house.
Enforcement of a non-discrimination ordinance is one of the central issues my law firm has raised in federal litigation, the first of its kind in Tennessee, on behalf of a former park police sergeant in Nashville. In 2009, the Music City enacted an ordinance prohibiting discrimination based on sexual orientation and gender identity for its employees, to much fanfare. However, Nashville’s non-discrimination ordinance curiously did not contain an explicit enforcement mechanism.
In the litigation, Nashville’s lawyers urged a district judge to dismiss our client’s claims based on the ordinance because the only way an employee could enforce the ordinance—if it was to be enforced at all—was through the municipality’s pre-existing, toothless administrative scheme. However, the administrative process is the ultimate paper tiger. The only thing it requires is for claims of discrimination to merely be “investigated.” In response, we reviewed the legislative record of Nashville’s city council when it passed the ordinance.
That record is clear. The Nashville City Council intended for its ordinance to be enforced, not through an impotent administrative process, but by the courts. As one city council member remarked during the debate on the ordinance:
“Friends, I think we all know what we are discussing tonight and I think we all know, and we’ve heard, specific allegations of discrimination within our government over the last several years. We’ve heard of fear, we’ve heard of experiences of intimidation, a fear of discovery. We simply are not protecting our employees. We simply are not upholding the rights of our employees when it comes to discrimination in the workplace. We can cast a broad paintbrush, but that won’t stand up in court. What will stand up in court is our delineation of the kind of activity we will not tolerate. And this bill expressly provides for that.”
Another member, who was opposed to the ordinance, noted, “The sponsor is quoted as saying, ‘This would be a basis for individuals to bring legal court action against this government.’ That doesn’t make sense to me. We strive to not get in situations that result in court actions against our government.”
It remains to be seen whether Nashville’s non-discrimination ordinance will be enforced in any meaningful way. While public employees may have a constitutional right to be free from sexual orientation discrimination in the workplace, it is equally plausible that their only avenue of relief in the courts is through enforcement of a municipal ordinance, like Nashville’s ordinance.
Until enactment of ENDA, the question of outlawing sexual orientation employment discrimination will remain hotly debated, as the Chattanooga experience recently demonstrated. However, once a municipality agrees to do so, it cannot seriously be argued that the ordinance should not be enforced.