In 2012, the Memphis City Council passed an amendment adding “sexual orientation” and “gender identity” to a list of workplace protections for city employees. But some believe the ordinance isn’t clear enough on what happens when an employee is actually discriminated against.
A group of law students from Memphis and across the country is spending their spring break this week working on an enforcement mechanism for the ordinance during the University of Memphis Cecil C. Humphreys Law School’s Alternative Spring Break program, in which law students offer pro bono services in various areas of civil and human rights.
“We’ll have students researching the ways in which other city’s [non-discrimination] ordinances are actually enforced on the local level. Hopefully, we can come up with a proposal for what the legal remedies are for violation of the ordinance in Memphis,” said Sarah Smith, a second-year U of M law student and the coordinator for the Alternative Spring Break program.
Maureen Holland, a local attorney who is representing a Memphis couple in the gay marriage case appeal to the U.S. Supreme Court, will be advising the law students in the Alternative Spring Break’s LGBT Equality Legislation Track.
“You have this ordinance, which is great, but it doesn’t say what happens. It says you can’t discriminate, but what happens if you do?” Holland asked.
Holland said the ordinance has been invoked in civil service cases. She said city workers who have civil service protections get the benefit of having a hearing before a termination or suspension, so those workers can invoke any city policies then. But Holland said city workers who don’t have civil service protections “are left to their own creativity” when they need to file complaints of violation of the non-discrimination ordinance.
City attorney Allen Wade said any city employee can take their discrimination complaint to the city’s human resources department, but if the department doesn’t take the employee’s desired action, that employee can file a lawsuit against the city. Holland said that should be spelled out better within the ordinance.
“Most anti-discrimination laws have the right to a private lawsuit as a piece. The federal [non-discrimination] law does, and the state does, too,” Holland said. “But the city ordinance doesn’t have anything like that. That’s something we can look at in terms of the enforcement mechanism or in terms of the remedies.”
If the law students working on this want to see their enforcement mechanism added to the city ordinance, they would have to find a councilmember to sponsor an ordinance to adopt the changes, and it would have to be approved by the full council.
There are 10 students on the LGBT track for the spring break program including three from out of state. The Alternative Spring Break program is in its fifth year, but the LGBT track is new.
“One area that we felt is underserved in the legal community in Memphis is the LGBT population,” Smith said.
Besides the LGBT track, 60 other law students from across the country will be working in four other civil rights-related tracks during this week’s spring break program. Those include helping felons restore their voting rights, assisting minors who have immigrated to the country as children gain legal status for employment and college access, working with low-income elderly people to draft wills, and helping people file divorce petitions.