• For the Rio Grande Valley, the rights of LGBTQ workers remains unresolved and in a gray area, legal wise, writes Eduardo Martinez, the LGBTQ reporter at Neta.
• While the City of Brownsville and City of McAllen have policies that protect city employees from discrimination based on their sexual orientation, no policy protects all other workers.
• Kelsey Snapp, an attorney at Texas Riogrande Legal Aid, says LGBTQ workers can sue their employers but must act quickly due to the fast deadlines of employment law cases.
• Martinez concludes that an effort to pass anti-discrimination ordinances would behoove LGBTQ workers. He cites the ordinances that were passed in more than 20 cities across the Valley to protect workers from cigarette smoke at their workplace as a precedent for what is possible.
Stories of LGBTQ workplace discrimination have been in the headlines for the past year. One case this year, Zarda v. Altitude Express, Inc., was a landmark case for the second circuit (New York, Connecticut, and Vermont), where its 10 to 3 decision on Feb. 2018 ruled that Title VII prohibits anti-LGBTQ workplace discrimination. This decision was covered extensively, as it went against the Trump administration’s brief that Title VII does not protect LGBTQ workers.
Unfortunately, different circuits have different interpretations of the law and end up determining different decisions in similar circumstances. Last month, the U.S. Court of Appeals for the eleventh circuit (Alabama, Florida, and Georgina) declined an LGBTQ discrimination claim with a 9 to 2 ruling for Gerald Lynn Bostock, who says he was fired as a child welfare coordinator after his supervisors found out he was gay.
For the Rio Grande Valley, which is in the fifth circuit, along with the rest of Texas, Louisiana, and Mississippi, this issue remains unresolved and in a gray area, legal wise.
A teacher who has taught at several school districts in the Rio Grande Valley and Texas shared her experience as an educator with Neta. She asked to remain confidential due to not wanting to be singled out at her school for talking about her experiences. When other teachers asked her about being worried of students and faculty seeing her talk about identifying as a lesbian on social media, she replied, “Why would I be concerned?”
At two districts that she has taught at, she was asked to stop assisting with the development of Gay-Straight Alliances (GSA) on campus. Once by her superior, and another time by a vice principal. She did not stop.
“I didn’t receive any repercussions,” the teacher said. “Even if I did, I’d like to see them try. Teaching inclusion should not be an issue whatsoever.”
This month, she started working at a school in the Valley that she describes as being conservative. She is not out about her sexual orientation at work, more for personal reasons than for concerns about discrimination. But she does know LGBTQ teachers who were or are currently worried about being out at work for fear of how they would be treated. She is also aware of LGBTQ teachers who have been discriminated against at school.
“Most of the stories I know of are of teachers who have tried to stay under the radar [regarding their sexual orientation],” the teacher said.
Stories of LGBTQ teachers and workers facing repercussions is a far too familiar story. This month, Out in SA reported on the story of Stacy Bailey, a teacher, who was barred by Mansfield ISD from teaching elementary school students in Arlington, Texas, due to complaints that accused her of “promoting the homosexual agenda.”
Bailey has filed a federal discrimination lawsuit against the district, and her attorney Jason Smith released the following statement to the Texas Tribune: “Texas doesn’t protect its workers very well in general, and it doesn’t protect LGBT folks in particular… Stacy Bailey’s case will hopefully send a message to school districts across Texas that the Constitution doesn’t allow them to discriminate based upon sexual orientation.”
With this being a regional, statewide, and nationwide issue, it raises the question: What protections, if any, do Valley cities and counties have when it comes to protecting LGBTQ workers?
Unfortunately, not too many.
Local ordinances are one way that LGBTQ workers can be protected in cities across the state of Texas. Austin, Dallas, Fort Worth, San Antonio, and Plano are examples of Texas cities that have adopted various ordinances addressing LGBTQ discrimination in the workplace. There is no city in the Valley has such an ordinance.
However, in 2012, a policy was approved by the city council of Brownsville that protects city employees from discrimination based on sexual orientation and gender identity. McAllen also has a policy that prohibits discrimination for city employees and city contractors on the basis of sexual orientation. The City of McAllen does not protect discrimination based on gender identity. Both of these cities were included in HRC’s Municipal Equality Index, which rates cities based on their “laws, policies, and services of municipalities on the basis of their inclusivity of LGBTQ people.” Through their criteria, which rates cities from zero to 100, McAllen scored 24, while Brownsville scored 21.
Outside of ordinances and city policies, there is also one US Supreme Court decision that could potentially help LGBTQ workers that are facing discrimination or who have been fired in a discriminatory manner, according to Kelsey Snapp, an attorney and the Team Manager of the LGBTQ Team at Texas RioGrande Legal Aid.
In 1989, there was a decision from the US Supreme Court known as Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which ruled that sex and gender stereotyping is a form of sex discrimination. The case involved Ann Hopkins, originally from Galveston, Texas, who sued the accounting firm Price Waterhouse for denying her partnership in the company due to gender stereotyping. She was reportedly a straight, cisgender woman. The partners at Price Waterhouse discriminated against her with the stereotypical expectations they had of Hopkins and other women who worked at Price Waterhouse.
“The partners said she acted ‘too masculine,’” Snapp noted. “The partners deemed her as acting ‘too aggressive,’ that she didn’t look ‘feminine enough,’ and that she didn’t act how they thought a woman was supposed to act.”
The Supreme Court’s ruling concluded that was sex discrimination in the historic case. The decision applies nationwide. Snapp further argues that this particular case can apply to many situations where an LGBTQ person is being or has been discriminated against in the workplace.
“The idea that men are supposed to date women, women are supposed to date men, that is a form of sex stereotyping,” Snapp said. “So if you could fit your claim under a sex stereotyping claim, then that is going to be recognized under the Price Waterhouse case. A lot of times when someone is discriminating against somebody because of their sexual orientation or because they are trans, what they are really arguing is that the person doesn’t fit certain stereotypes.”
If an LGBTQ person wants to sue their former place of employment due to discrimination based on stereotypes, they would need an attorney who would be able to draft their complaint and put the facts of the case under the Price Waterhouse ruling, according to Snapp.
Nevertheless, many different scenarios can happen in the workplace, and some may not apply to the Price Waterhouse ruling. Another common experience the TRLA attorney explained is when an LGBTQ person is met with hostility in the workplace and decides to resign from their position. A person would move forward with that case in a different manner. There is not just one way an LGBTQ person can be discriminated against in the workplace.
“In employment law cases, there are really quick deadlines,” Snapp said. “If you faced discrimination, generally you only have 180 days to file a complaint with the Equal Opportunity Employment Commission or with the Texas Workforce Commission. The statute of limitations in law is many years. A lot of times it’s two to four years, sometimes even up to six years for you to bring a claim against somebody. But with employment law, you have to get the ball rolling in six months. So that’s a much more accelerated timeline.”
While the second circuit and sixth circuit has ruled within the past year that sexual orientation was indeed protected under Title VII of the Civil Rights Act of 1964, the fifth circuit, where the Valley is located, has not followed suit.
“They are pretty conservative,” Snapp said of the fifth circuit. “Because of how the usual appointments work in the Senate, the home state senators have some influence, so circuits that cover conservative areas tend to be more conservative. Circuits that cover liberal areas tend to be more liberal. The fifth circuit has not followed the second circuit [previously].”
The state of LGBTQ workers and what options they have in 2018 remains unclear.
The Human Rights Campaign, who has been documenting this issue, released a report this Summer titled A Workplace Divided: Understanding the Climate for LGBTQ Workers Nationwide. The report explores the various struggles and challenges that LGBTQ workers face in the workplace. The study found that 53 percent of LGBTQ workers hear homophobic jokes at work and that 31 percent feel unhappy with how they are treated at work.
With so many LGBTQ workers facing all types of issues, one option that could potentially help in the Valley is a grassroots effort to encourage new city ordinances that protect against anti-LGBTQ discrimination. Ordinances protecting workers have been passed in the Valley before. For example, there have been ordinances adopted in more than 20 cities across the Valley to protect workers from cigarette smoke at their workplace. We have seen other cities in Texas pass ordinances protecting LGBTQ workers, and Brownsville and McAllen have already taken early steps with their policies that protect city employees.
Another option for LGBTQ workers who want to build worker power in the Valley is to work together towards organizing to combat these issues. A movement led by LGBTQ workers, who want to build worker power in the Valley, could create a brighter future for what is still, unfortunately, a Valley of Tears for workers.