Knoxville City Attorney Ok’s Non-Discrimination Ordinance; Opinion Instructive for Memphis Non-Discrimination Ordinance

From the desk of Councilman Lee Harris:

"There is nothing in [the Knoxville] Charter
which we find to be a definitive and
exclusive list of discriminatory practices."
- Deputy Law Director Ronald E. Mills 

Other Tennessee cities have begun to voice opinions regarding Non-Discrimination. Specifically, in response to inquiry from elected officials in Memphis, the Knoxville City Attorney has opined that their city’s non-discrimination ordinance does not conflict with their Charter. According to the attorney’s opinion, “revisions to various sections of the Knoxville City Code regarding discrimination based on gender identity, sexual orientation and other factors…do not in any way violate the Knoxville City Charter”. The opinion goes on to say that “there is nothing in [the Knoxville] Charter which we find to be a definitive and exclusive list of discriminatory practices.” A copy of the Knoxville Opinion is attached to this release.

Said County Commissioner Steve Mulroy: “I thought it prudent to check with another big Tennessee city and see how they were able to do it.  Their opinion is instructive.  Their charter and ordinance are virtually identical.  Indeed, the argument that the City Council has authority under the charter is even stronger in Memphis."  Said Councilman Lee Harris: “Knoxville, which is hardly a redoubt of the liberal fringe, is way out in front of Memphis. This city has some serious catching up to do. The Knoxville opinion reminds us that there is nothing serious standing in our way. It’s hard to move city government.  But, other cities have done it and, with any luck, this opinion helps resolve that is no serious reason why we can’t.” Said Jonathan Cole, a leader of the Tennessee Equality Project: “Given the willingness of sister cities to go out a limb and get involved, I’m increasingly confident that nothing can stop us. I am increasingly confident that there are no barriers to adding non-merit factors to the City of Memphis non-discrimination ordinance.”

Councilman Lee Harris: "The Knoxville opinion reminds us
that there is nothing serious standing in our way."

For background, on Tuesday, September 18, Memphis City Councilmen Lee Harris and Shea Flinn sponsored a non-discrimination ordinance that would prohibit discrimination on the basis of sexual orientation. Discussion ensued over whether the ordinance was permissible under the City of Memphis Charter. Final approval of the ordinance was delayed until Oct. 16. The ordinance, if approved on Oct. 16, provides as follows: “There shall be no discrimination in city employment of personnel because of religion, race, sex, creed, political affiliation, national origin, ethnicity, age, disability, sexual orientation or other non-merit factors, nor shall there by any discrimination in the promotion or demotion of city employees because of religion, race, sex, creed, political affiliation, national origin, ethnicity, age, disability or other non-merit factors.” A copy of the Non-Discrimination Ordinance is attached. The Knoxville City Charter provides: “No elected official administrator, director, or employee of Knox County shall discriminate against any person in employment or provision of services based upon race, sex, religion, age or nationality without due process of law.” The Memphis City Charter provides: “[T]here shall be no discrimination in the city employment of personnel because of religion, race, sex, creed, political affiliation, or other non-merit factors, nor shall be there any discrimination in the promotion or demotion of city employees because of religion, race, sex creed, political affiliation, or other non-merit factors.” A copy of the relevant portions of the Knoxville Ordinance is attached to this release.

Councilman Lee Harris can be reached at 901-210-4429. Commissioner Steve Mulroy can be reached at 901-603-8779. TEP representative Jonathan Cole can be reached at 901-301-3306.

Memphis City Council makes progress but not enough

Action News 5 - Memphis, Tennessee

The Memphis City Council made history yesterday in amending Councilman Lee Harris's employment non-discrimination ordinance by adding new non-merit factors which are not covered in the current municipal ordinance: age, disability, and sexual orientation. Seven council members, including 6 Democrats and 1 Republican, voted for the amendment - real progress.

Council members supported the amendment of the ordinance because of support from city employees and employee unions, faith leaders and other mainstream organizations. Tennessee Equality Project is grateful to  many who spoke or came prepared to speak on behalf of the amended ordinance.

But yesterday's victory is bittersweet for two reasons.

First, the council failed to include gender identity or expression in the amendment. At every step in this campaign, TEP has advocated for a fully inclusive ordinance. To exclude gender identity and expression ignores the very real hardships that transgender people face in Memphis. Because of the workplace discrimination they encounter, many transgender people face poverty, homelessness and violence. I reminded the council of this fact in my comments during public input. This ordinance is incomplete and unacceptable without gender identity and expression. We cannot abandon our transgender brothers and sisters and we will continue to push the council to amend the proposed ordinance again.

Second, City Attorney Herman Morris sabotaged immediate passage of the amended proposal by casting doubts on its compatibility with the City of Memphis Charter. Morris and Council Attorney Alan Wade  stated that the ordinance may make the city vulnerable to a lawsuit since sexual orientation is not mentioned in the charter or other state or federal law. Both attorneys suggested that a ballot referendum may be necessary to add such language to the charter to avoid court battles. The council voted to hold the amended ordinance for 30 days until the charter questions could be fully analyzed.

Since versions of this ordinance were introduced twice in 2010, the announcement of a charter conflict two years later is suspicious.

The charter conflict question is a farce. City employees deserve
to know why the administration is standing in the way of equality.

When Tennessee Equality Project worked with original council sponsor Janis Fullilove on the first version of an LGBT-inclusive ordinance, we met extensively with the City Attorney's office and Human Resources Attorney. TEP engaged in this process in good faith to ensure that the proposed LGBT-inclusive ordinance fit within the existing framework of municipal, state and federal law - including the City of Memphis charter.

Many council members and advocates at the meeting suspected foul play. The City of Memphis Charter states the following in Article 34, Section 249:

There shall be no discrimination in the City employment of personnel because of religion, race, sex, creed, political affiliation, or other nonmerit factors, nor shall there be any discrimination in the promotion or demotion of City employees because of religion, race, sex, creed, political affiliation, or other nonmerit factors.

I am not an attorney, but attorneys with whom I've consulted believe that the charter language is expansive in its scope with regard to prohibited factors in employment discrimination. "Other nonmerit factors" provides a floor, not a ceiling, for the recognition of additional forms of prohibited discrimination. Opponents of the ordinance are attempting to use the City of Memphis Charter in the same way that state lawmakers use HB600/SB632 to limit the ability of local government to prohibit discrimination of employees of contractors and other private employers.

To suggest that the civil rights of lesbian, gay, bisexual and transgender people be subject to a popular vote is a stalling tactic. The Wharton Administration deliberately intervened yesterday to prevent this ordinance from moving forward. City of Memphis employees who deserve to be treated equally on the job deserve to know why.

- Jonathan Cole

Surrendering Memphis City Charter?

Mayor Willie Herenton declares his support for surrendering the Memphis City Charter as a mechanism for consolidating City and Shelby County government. There are a surprising number of officials willing to entertain the idea.

Such a move would have significant ramifications for the plans to enact a Non-Discrimination Ordinance (NDO) for the City of Memphis. If an NDO were enacted and the citizens of Memphis approved surrendering the city charter in a ballot referendum, we'd have to start over with the County Commission. Ultimately, a Shelby County NDO would be the next logical step after a Memphis's approval of the NDO.