Charlotte manager makes employment policy changes

Sexual orientation added to equal employment regulations

by Matt Comer  Editor  editor@goqnotes.com
Published: April 17, 2010 in News

Originally published online: April 1, 2010, 3:04 p.m.
Updated with print edition: April 17, 2010, 4:26 p.m.

Ed. Note — qnotes’ April 3 article, “Despite leadership changes, MeckPAC keeps pushing city leaders,” contained outdated information. On April 1, two days before our issue’s street date and three days after press time, new information regarding employment policy changes in Charlotte were relayed to qnotes staff. We apologize for any confusion. An update to this story is printed below.

CHARLOTTE — City employees once faced with the possibility of anti-gay discrimination no longer need worry. After years of discussions with city leaders and staff, LGB, as well as straight, employees are now protected from discrimination based on sexual orientation.

The policy change, authorized by City Manager Curt Walton and effective March 29, adds the term “sexual orientation” to the equal employment language of the city’s “Personnel Rules and Regulations.”

The new policy, which did not require approval from the city council, will not change the city charter and is not an amendment to already existing city ordinances. Further, future city managers would have the authority to change the policy and strip out the new addition if they so choose.

Despite what might be seen as an impermanence in the absence of an ordinance, Walton told qnotes the new policy is now in full force and employees subject to discrimination based upon sexual orientation can take full advantage of it.

Charlotte employees and LGBT citizens have spent years trying to convince the city to amend its equal employment policies or create an equal employment ordinance. Previous opinions from City Attorney Mac McCarley have stated the city council doesn’t have the authority to undertake such changes.

In a Feb. 23, 2010, memo from McCarley to Walton, McCarley said there remain questions over the city council’s authority to adopt a “sexual orientation”-inclusive ordinance banning employment discrimination. McCarley said federal law in Title VII does not prohibit discrimination based on sexual orientation. The city charter, he said, also limits the city’s non-discrimination statement to those characteristics already listed (race, religion, color, sex, national origin, age, disability, and political affilation).

In the memo, McCarley said the policy change is the “most legally defensible way to include sexual orientation in the City’s equal employment language without first requesting a Charter amendment from the legislature.”

In an April 1 telephone interview with qnotes, Walton said he was unaware of any actual discrimination based on sexual orientation but that he’d heard real concerns that discrimination could occur. In his March 29 memo announcing the policy change, Walton said the absence of “sexual orientation” in the equal employment language was a “glaring omission.”

The term “gender identity” was not added to the non-discrimination policy.

“We are not recommending that you include ‘gender identity’ as a protected status,” McCarley’s memo to Walton read. “This is a relatively new term, has no recognized legal definition, and is highly subjective.”

McCarley told qnotes he worked with the city manager’s office to come up with the best possible changes for the new policy.

“The city manager asked us if we could find a way to do this and we gave him the best option we could,” he said in a telephone interview.

McCarley said the term “gender identity” had not been held up to any judicial scrutiny.

Harper Jean Tobin, policy counsel for the Washington, D.C.-based National Center for Transgender Equality (NCTE), told qnotes she believed city officials were mistaken.

“It’s not new in the sense that it has been part of various state and local laws in many places for a decade, in some places for two decades,” Tobin said via phone. “There is a pretty well established meaning.”

Ten years ago, a federal court in Kentucky found “gender identity” had a “consistent usage by courts, dictionaries, and state and local laws around the country” and that the term had a “commonly understood meaning,” Tobin said in a follow-up email. The decision in that case, Hyman v. City of Louisville, was eventually vacated when a higher court ruled the plaintiff had no standing to sue. Tobin said the the lower court’s opinion set no precedence but remains an indicator of the facts regarding transgender inclusion in employment policies and ordinances.

Charlotte is the last major city in the state to take up discussion of LGBT-inclusion in city ordinances or policies. Nine cities and four counties include “sexual orientation” in their non-discrimination policies or ordinances. Boone, Carrboro, Chapel Hill and Orange County also include “gender identity.” : :

online only: Click here to download (PDF) City Manger Curt Walton’s and City Attorney Mac McCarley’s memos.

MeckPAC speaks out

Statement from the Mecklenburg Gay and Lesbian Political Action Committee (MeckPAC):

Mecklenburg Gay & Lesbian Political Action Committee (MeckPAC) is very pleased that the city manager recently added sexual orientation to the City of Charlotte’s employment non-discrimination policy. We applaud the city for taking this important step toward equal and fair treatment for all of its employees. This is the product of years of hard work by MeckPAC and the LGBT community in advocating for basic workplace fairness.

Much credit should be given to Mayor Anthony Foxx for his advocacy in getting the city manager to enact this historic change. Once elected, Mayor Foxx made this issue of workplace fairness a priority. Mayor Foxx understood that this policy change was long-overdue for the largest city in North Carolina since many other municipalities and private employers have had this protection in place for their employees for years. Municipalities in N.C. that preceded Charlotte in including sexual orientation in their non-discrimination policies are: Raleigh, Greensboro, Winston-Salem, Durham, High Point, Chapel Hill, Boone, Carrboro, Bessemer City, Mecklenburg County, Guilford County, Durham County, and Orange County.

The hard work with the City of Charlotte is not over yet. Gender identity, which MeckPAC lobbied for in tandem with sexual orientation, was not added to the city’s non-discrimination policy. In fact, the city attorney recommended against its inclusion. A recent lawsuit involving a transgender woman who sued the city after she was fired from her job in the city’s vehicle maintenance department should provide even more reason to include gender identity in the non-discrimination policy—not less. MeckPAC will not consider its work on this issue completed until gender identity is included; therefore, our lobbying efforts will continue with an even stronger focus on education about people who are transgender.

For more information about MeckPAC, visit www.meckpac.org.

This piece appeared in the April 17, 2010-April 30, 2010 print edition.