Thursday, August 14, 2014

Is Metro Trying to Nullify Its Own Nondiscrimination Ordinance?

Posted By on Thu, Aug 14, 2014 at 9:43 AM

In 2009, the Metro Council approved a nondiscrimination ordinance that added protections for city workers from discrimination based on their sexual orientation or gender identity.

Five years later, Metro's lawyers are arguing that it should not be enforced by a court.

The Metro government and the Board of Parks and Recreation, along with Parks director Tommy Lynch and several other individuals, are being sued in federal court by former Metro Nashville Parks Police sergeant Pamela DeSoto, who claims she was discriminated against based on her sexual orientation, gender, race, and age. Her suit alleges that her rights were violated citing various statutes, among them the 2009 Metro ordinance.

But a recent brief filed by DeSoto's attorney, Ben Rose, and posted on his website reveals that Metro is seeking to dismiss DeSoto's claims pursuant to the ordinance "because the Ordinance ‘does not create a private right of action." In other words, they're arguing that the ordinance does not grant her the ability to sue the government for violating the ordinance.

Metro is arguing that the nondiscrimination ordinance does not include an enforcement mechanism — which is true and not disputed by Rose — but that the relevant chapter of the code does. That's the process through which they say the ordinance should be enforced, not through the courts. *(Note: To clarify, Rose acknowledges that the ordinance does not create an express private right of action, but he is arguing that one is implied.)

Metro attorney Keli Oliver stated the argument in an emailed statement to Pith:

Further, Chapter 11.20 of the Code has its own enforcement mechanism for discrimination complaints. Chapter 11.20 provides for an administrative process through which employees may file complaints and have them investigated. This section also provides for the Metro Human Relations Commission’s ability to hold hearings on complaints and even issue citations to have such matters heard before Metro courts. It is Metro’s position that this is the proper enforcement mechanism for any alleged violation of the anti-discrimination provisions of Chapter 11.20 and that ensuring that all such complaints are thoroughly investigated and brought before the proper tribunal effectuates the purposes of all the anti-discrimination provisions in the Code, including Section 11.20.130. And, of course, any employee that feels that he or she is aggrieved by discriminatory practices remains free to bring a direct suit for monetary damages under other anti-discrimination laws, such as Title VII or the Tennessee Human Rights Act.

In his brief, Rose disputes the suggestion that the council intended the ordinance to be enforced through the administrative process. He notes that "there is nothing contained within the text of the Metro Ordinance which even remotely suggests that it would be enforced in this manner" and that the broader chapter doesn't mandate the use of the process, but simply says that an individual claiming discrimination "may" file a complaint. Furthermore, Rose argues that the administrative complaint process is toothless, promising only that complaints "will be investigated."

"If discrimination is found to exist, the administrative scheme turns out to be the ultimate paper tiger, or in the vernacular, an impotent tool for rooting out rampant discrimination at the heart of a good old boy network in Metro like Parks Police," he writes in the brief.

He concludes later: “The enactment of the Metro Ordinance did nothing to change this toothless process other than provide Metro with the appearance of abhorring race, gender, age and most recently sexual orientation discrimination. Short of a mandatory “investigation” of the claims, Metro simply ignores these types of discrimination complaints under its administrative scheme…In other words, if rampant discrimination exists in Metro, as has been alleged in this case, and it fails or refuses to address it, there is no real remedy for aggrieved employees like Sgt. DeSoto.”

Rose also points to the legislative history of the ordinance, arguing that the record makes it clear that council members believed the ordinance would be enforced through the courts. He points to statements from council members during the debate over the ordinance about crafting a law that would stand up in court.

"Metro has basically taken the position that its own ordinance banning sexual orientation discrimination is meaningless," Rose said in a statement to Pith. "We cannot agree with this position and the Metro Council proceedings do not support it either."

"Clearly, the Mayor and Metro's lawyers want to appear to be accommodating to victims of sexual orientation discrimination, but when the rubber meets the road, they hide behind convoluted legal arguments. If Metro really wants to make a difference, it should simply acknowledge what Metro Council did back in 2009."

Update 12:55 p.m.: This post was updated to include the note above.

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