It’s been described as “an opportunity for sexual predators to have access to our families” and “an historic non-discrimination ordinance.” But rhetoric aside, the Houston Equal Rights Ordinance (“HERO”) is the law in the Bayou City. So what’s it mean for your business? You can (and should) read the complete ordinance, but here are six things you need to know:
- Even if you’re not in Houston, a similar ordinance may already apply.
- The “bathroom provision” may still be an open issue.
The city council removed a much-publicized “bathroom provision” that would have allowed transgender people to use the restroom of the gender with which they identify. But the effect of this provision’s removal isn’t clear. In fact, some commentators say that the ordinance may still require employers to allow their transgender employees to use the restroom of their identified gender.
The concern comes from section 17-2’s definition of “Discriminate.” According to this section, certain businesses cannot “intentionally distinguish, differentiate, separate, or segregate to the advantage or disadvantage of any person on the basis of [among other things, gender identity].” Under section 17-51(a), any “place of public accommodation” that intentionally discriminates violates the ordinance. Section 17-61(a) makes a private employer’s intentional discrimination a violation.
Given the amorphous definition, exactly what constitutes “discrimination” is anyone’s guess. In any event, businesses don’t normally intend gender-assigned restrooms to advantage or disadvantage anyone. In other words, without the express “bathroom provision,” gendered restrooms appear to be safe for the time being. But some think it’s a closer call. This brings us to the next point.
- Intent is key.
HERO only criminalizes intentional discrimination. As a result, anti-discrimination policies and practices not only help your business avoid HERO violations in the first place, they demonstrate you intent to avoid discrimination. If you ever face a HERO violation, these policies will be Exhibit A in your defense that any alleged discrimination was unintentional. Make sure your anti-discrimination policy complies with HERO and circulate it regularly.
- You’re liable for your employees.
If your employees work with the public, they need to understand HERO. The ordinance makes employers liable for their own acts and those of their “employee[s] or agent[s]” as well. This means that if your employee violates HERO, you’re likely on the hook for the fine.
- It may not apply to your small business—at least not yet.
The ordinance affects smaller employers on a rolling basis. For now, it applies to companies with 50 or more employees. On May 30th of next year, it expands to employers with 25 or more employees. A year after that it reaches businesses with more than 15 employees. Some have pointed out that the ordinance doesn’t require the requisite number of employees to be in Houston. So be aware that the ordinance probably applies to Houston satellites of larger companies.
- The stakes aren’t that high.
HERO violations carry penalties similar to traffic tickets. Infractions trigger a fine of $250 each, but can’t aggregate to more than $5,000. The municipal court will try violators. The ordinance doesn’t create any private right of action, so large civil suits aren’t a concern.
Determining all the ways HERO may apply to your customers and employees can be complicated. A proactive, comprehensive approach to compliance is key.