6 years after LGBT activists succeeded in getting an ordinance passed, no one knows if it works or not
Gay rights activists spent nearly a decade trying to convince the Dallas City Council to ban job discrimination based on sexual orientation.
In the nearly six years since they were ultimately successful, the city hasn’t prosecuted a single case of job discrimination under what is known as HR Ordinance 46.
As of April 7, 2008, there had been 22 job discrimination complaints filed under the ordinance, according to the city’s Fair Housing Office, which investigates the complaints. The ordinance took effect on Oct. 1, 2002.
Of those 22 complaints, only one resulted in a "mediated resolution," while one was withdrawn, 17 were found to have no cause, and three were deemed nonjurisdictional (because the accused party was a government entity or the complaint involved an employer with fewer than 15 employees.)
No further information was available about the 22 complaints, because the city won’t release records related to the cases, citing the privacy interests of parties involved.
On April 12, Dallas Voice filed a request, under the Texas Public Records Act, for access to any and all documents related to the 22 complaints.
In a letter dated May 8, the City Attorney’s Office referred Dallas Voice’s request to the state Attorney General’s Office, which has 45 working days to issue a decision.
In the meantime, the newspaper is reviewing its options, which include filing a lawsuit against the city in district court.
"On the face of it, I’m openly skeptical about the city’s position that any information beyond the number of complaints that have been filed with the city under HR Ordinance 46 is protected by privacy," Dallas Voice Publisher Robert Moore said. "I can certainly understand that certain private information such as health status, private relationships, etc., the city would choose to hold as confidential. But the wholesale denial of our request for any and all records pertaining to this ordinance smacks to me of stonewalling.
"We’re exploring what our options are to gain access to these records."
Michael Bostic, the assistant city attorney who reviewed the newspaper’s request, said he believes it marked the first time someone formally sought records related to complaints filed under HR Ordinance 46. As a result, Bostic said the city wanted to exercise "an abundance of caution."
"We just kind of wanted some guidance from the Attorney General’s Office," Bostic said. "They may come back and say to release some things."
According to a letter from the City Attorney’s Office to the Attorney General’s Office, some of the information in the files may be exempt from disclosure under the Public Records Act due to what is known as common law privacy. Common law privacy exempts from disclosure "information that contains highly intimate or embarrassing facts about someone’s private matters such that its release would be highly objectionable to a reasonable person and the information is of no legitimate concern to the public," according to the Public Records Act.
Bostic confirmed that the City Attorney’s Office isn’t concerned about revealing the sexual orientation of people who’ve filed complaints under the ordinance. Experts say sexual orientation isn’t exempt from the Public Records Act under common law privacy.
An effective deterrent?
The 22 complaints represent only those that were filed under the ban on job discrimination based on sexual orientation in the ordinance. The ordinance also bans discrimination based on sexual orientation in housing and public accommodations.
The number of complaints filed related to housing and public accommodations wasn’t immediately available this week, said Rosie L. Norris, administrator of the Fair Housing Office. The 22 complaints also don’t include any that have been filed by municipal employees under a separate ordinance prohibiting discrimination based on sexual orientation in city government.
Norris said the Fair Housing Office has one full-time employee dedicated to investigating complaints of discrimination based on sexual orientation. When the ordinance initially took effect, there were two full-time employees dedicated to investigating the complaints. However, due to budget cuts and the small number of complaints, one of the positions has been eliminated, she said.
Norris said her office conducts extensive outreach, including radio and newspaper advertisements, to inform people about their rights under the ordinance. Information is also accessible on the Fair Housing Office’s Web site.
The outreach is done in conjunction with outreach about the city’s Fair Housing Ordinance, which the office also enforces. The Fair Housing Ordinance prohibits discrimination in housing based on race, color, religion, sex, national origin, handicap and familial status.
Norris said when someone files a complaint, mediation is offered throughout the process, but both parties must agree to it. After the Fair Housing Office completes its investigations, complaints are turned over to the City Attorney’s Office, which determines whether there’s cause to file criminal charges in municipal court. Violations of the ordinance are punishable by a fine of $200 to $500.
Jennifer Richie, executive assistant city attorney, said cases involving sexual orientation are treated no differently from other discrimination complaints.
"Any kind of discrimination, regardless of the class it falls into, it’s just not to be tolerated in the city of Dallas," Richie said. "We will prosecute and zealously prosecute any case where we find cause."
Norris estimated that 60 to 70 complaints a year are filed under the Fair Housing Ordinance, resulting in approximately two findings of cause and 15 mediated results. Richie said one to two fair housing complaints a year result in cases being filed in civil district court, but Norris said no cases have ever been prosecuted in municipal court.
Norris said she’s confident sexual orientation complaints are being properly investigated by her office. She also said she doesn’t believe there’s a problem with the way HR Ordinance 46 is written.
When Dallas officials were studying the proposed ordinance, they determined that the number of complaints in other cities with similar ordinances was relatively small, Norris said. Statistics related to complaints filed in the other two Texas cities with ordinances banning discrimination based on sexual orientation, Austin and Fort Worth, weren’t available this week.
When people allege they’ve been fired due to their sexual orientation, Norris said, employers frequently offer different explanations. Unlike Fair Housing complaints, the city can’t pursue sexual orientation complaints in state or federal court — where penalties are considerably stiffer — because there aren’t any corresponding laws banning the discrimination.
Rob Wiley, a gay Dallas attorney who specializes in employment discrimination law, said in the absence of a state or federal law, the city’s ordinance lacks any real teeth, which likely deters people from filing complaints. The lack of a state or federal law also prevents individuals and the city from filing civil cases.
Others suggested that LGBT people may not be aware of the ordinance, may feel uncomfortable filing complaints or may not be willing to devote the necessary time.
Still, Wiley said he would have anticipated that in more than five years, the ordinance would have seen more activity.
"I’m not shocked, but I am disappointed," Wiley said, adding that his office sometimes refers people to the Fair Housing Office. "I would have expected there to have been probably 50 or 60, and I think that you should see, probably, a third of them resolved through mediation."
But Wiley and others said the numbers alone don’t necessarily indicate that the ordinance hasn’t accomplished its goal.
Given that penalties are light, the intent of the ordinance is widely acknowledged to have been largely symbolic.
Roger Wedell, a gay rights activist who helped to get the ordinance passed, said he and others hoped it could eventually be used to help convince the Texas Legislature to pass a statute banning discrimination based on sexual orientation.
Wedell, a former president of the Dallas Gay and Lesbian Alliance, also said the small number of complaints may indicate that the ordinance has been an effective deterrent.
"That’s part of the point of any civil rights legislation, is to make sure that there aren’t any complaints filed," Wedell said. "It got a lot of notoriety. A lot of people found out that if they’d been behaving in a discriminatory way, that that was no longer acceptable."
Transparency vs. privacy
But Wedell said it would be impossible to draw further conclusions about the ordinance’s effectiveness given that the city doesn’t release records related to the complaints.
"Without knowing what those complaints are and the evidence within those complaints, you cannot make a judgment about whether it’s being enforced or whether the city’s keeping good faith," Wedell said.
Bill Aleshire, an Austin attorney from the Texas Press Association’s Freedom of Information hotline, said that by releasing the complaint files, the city could demonstrate that the ordinance isn’t just "for show." The associated publicity could be viewed as an additional consequence for those who violate the ordinance. "Part of whether it means something is the public scrutiny of what is actually going on," Aleshire said.
Aleshire said he believes city officials should simply redact whatever information they believe is exempt from the Public Records Act before releasing the files.
Others, however, expressed concern that if people knew complaints would become public, they’d be less likely to file them. And some suggested that if there are serious problems with implementation of the ordinance, city officials and the media would be hearing about it from people who filed complaints and were dissatisfied with the process.
There is some precedent for the city’s position that job discrimination complaints may be exempt from disclosure. Complaints filed with the federal Equal Employment Opportunity Commission are not public unless they become lawsuits.
However, the law enforced by the EEOC don’t include sexual orientation, and Aleshire said there are other key differences between federal discrimination complaints and complaints under the city ordinance.
Norris said it’s standard practice for the city’s Fair Housing Office to forward requests under the Public Records Act, including those related to the Fair Housing Ordinance, to the City Attorney’s Office.
Richie, the assistant city attorney, said if the city were to find a complaint to have cause and file a criminal case in municipal court, both the court file and proceedings would be public.
A spokeswoman for the city of Austin said the city would release records of sexual orienation complaints in response to a formal request. An assistant city attorney in Fort Worth said it’s likely the city would take the same position as Dallas and forward the matter to the Attorney General’s Office.
Veletta Forsythe Lill, a former Dallas city councilwoman who was a chief proponent of the ordinance, said she doesn’t recall whether it was intended that the complaints would be public. However, according to Dallas Voice archives, the city has declined to release details of the complaints ever since the ordinance was passed.
"In honesty, I don’t remember it being a big part of our discussion," Lill said. "I understand the interest in transparency. I also understand the interest in individual privacy. That is a question that might be a good one for an open dialogue."
This article appeared in the Dallas Voice print edition May 23, 2008.
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