COVER STORY: 10-year test case

A decade after the Dallas City Council passed an ordinance banning anti-LGBT discrimination, Alan Rodriguez’s pending complaint against the Tom Landry Fitness Center could serve as a test of the law’s effectiveness — and become the 1st case prosecuted out of 59 that have been filed

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WE ARE FAMILY | Alan Rodriguez, right, and his partner were denied a family membership at the Baylor Tom Landry Fitness Center, a popular gym in East Dallas. Rodriguez alleges Baylor is violating the city’s ban on discrimination based on sexual orientation in public accommodations. (Anna Waugh/Dallas Voice)

 

ANNA WAUGH  |  Staff Writer

Alan Rodriguez has all but lost faith in the city of Dallas’ nondiscrimination ordinance after his case filed last year has yet to be resolved.

Rodriguez filed a complaint in February 2011 against Tom Landry Fitness Center in East Dallas after the gym refused to sell him and his partner of 10 years a family membership because they are a same-sex couple.

The gym, owned by Baylor Health Care System, claims its is a private religious organization and not a public accommodation, he said. Rodriguez — and LGBT legal experts — disagree.

“I think it’s pretty black and white in my case. The intent of the law is to not allow that kind of discrimination to occur,” Rodriguez said. “It is clear by the way that Baylor’s acting that while there’s a clear intent to the law, that they feel they can legally maneuver around it.”

Jennifer Coleman, the Baylor Health Care System’s senior vice president for consumer affairs, declined comment this week because the case is still open. Coleman told Dallas Voice last year that Baylor planned to review its family membership policy in response to Rodriguez’s complaint.

“We’re going to look and see about that policy, what it says, and then I’m not sure what we’re going to do next,” Coleman said. “I can’t commit to changing it, because that’s not a decision for me to make, but something for us to look into. It’s unfortunate that this thing came up this way, but I can commit [that] we’ll sure look into it.”

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UNHAPPY CUSTOMERS | Mark Reed, right, and Dante Walkup filed a discrimination complaint with the city against The Dallas Morning News after the newspaper refused to publish their marriage announcement. Although The Morning News eventually changed its policy, Reed said he doesn’t think the city was much of a factor, and he criticized its handling of their complaint.

The Dallas City Council passed the ordinance, which turns 10 this year, in May 2002, making  it a class-C misdemeanor to discriminate in housing, employment and public accommodations on the basis of sexual orientation. Gender identity is included in the definition of sexual orientation. Religious organizations and government entities are exempt.

Over the last decade, 59 complaints have been filed through the Dallas Fair Housing Office alleging discrimination based on sexual orientation. But not one has been prosecuted by the city in municipal court.

The 59 complaints have resulted in 37 dismissals for “no cause,” meaning there wasn’t enough evidence to prove discrimination occurred, Fair Housing Office Assistant Director Beverly Davis said.

Five of the 59 cases have been resolved through outside settlement, while another five were reconciled through the housing office or city attorney’s work. Another six were dismissed because of jurisdiction, and four dismissed due to uncooperative complainants. There are currently two open cases, including Rodriguez’s.

Rodriguez said the ordinance is not specific enough and “leaves much open to interpretation and legal maneuvering.” Because the city put the ordinance under Fair Housing, he said there was a mission to pass it but to not give it much weight or resources to properly review and investigate the complaints.

“[The city] tried to implement an ordinance that it felt like was necessary to attract talent to the city, while at the same time they wanted to make sure that there were sufficient loopholes in it and insufficient funding behind investigating complaints that it wouldn’t be a burden either in terms of the taxpayer dollars or to businesses in the city, and so I’d call it ineffective,” Rodriguez said.

After a complaint is filed, a full-time staffer who reviews all the complaints investigates the claims, usually taking about 100 days before turning them over to the City Attorney’s Office, Davis said. Many cases take longer to decide on because more information and further investigation is needed.

Openly gay Senior Assistant City Attorney Melissa Miles, one of several attorneys who review discrimination complaints, said she believes the ordinance has been “very effective” because of the education companies and employees go through during an investigation. Although the majority of complaints were dismissed for no cause because it is difficult to prove discrimination, Miles said the pressure the investigation puts on companies helps them become aware of practices to avoid in the future.

“Even if we can’t prove it, even if we wind up no-causing it, which is the majority of the cases, that doesn’t tell the story about the conversations that we’ve had,” she said. “We’re having those conversations, and they’re feeling the heat, and we’re educating them.”

In March 2011, Mark Reed filed a complaint against The Dallas Morning News after the newspaper refused to print a same-sex marriage announcement for him and his partner.

After several weeks, an investigator visited them but nothing happened for months, he said. When Reed received a letter from the Morning News’ lawyers, he discovered they had not met with the city in the formal process of investigation. In June, he requested a meeting with the CEO, leading to the paper changing its policy a few weeks later.

“We got it done through really our own efforts and determination and not really having any assistance from the city just because the way the thing was handled,” Reed said. “In our case, that ordinance really didn’t, in the end, do anything to assist us one way or the other.”

Although the formal process didn’t help resolve Reed’s case, he said having the ordinance in place “created a platform” to eventually have a discussion with the newspaper’s management and end the discriminatory policy.

Reed said after the case was settled, he found  it had been awaiting the city attorney’s decision — the same status as Rodriguez’s currently. Reed said it is likely Rodriguez’s case is stalled like his because the defendant is not cooperating with the investigation.

Miles called Reed’s case a perfect example of how the city helped the two parties sit down and talk about the issue, resolving it outside of court and making it more beneficial for both parties because of the conversation. She said settlements are encouraged because they address the complaints and resolve them without legal action.

Rodriguez said he’s tried to resolve his case by talking to Baylor staff, but its lawyers won’t speak to him. Now he’s waiting for the city to determine whether the case will move forward to possible prosecution.

And while he has long since given up wanting to join the Tom Landry Fitness Center — instead becoming a member at a gym in Lakewood that offered the family discount — he said he wants to follow the case through because he believes Baylor is in the wrong.

“I believe they’re violating the ordinance, so someone needs to hold them accountable or at least empower the city to let this work its way through whatever process it’s going to follow,” he said.

Last year, Resource Center Dallas sent a letter to Councilwomen Angela Hunt and Pauline Medrano highlighting the city’s failure to prosecute any complaints under the ordinance.

The councilwomen said they would investigate the cases and the outcomes. The investigation has since fallen to Councilwoman Delia Jasso’s LGBT Task Force. After reviewing 53 complaints filed through February 2011, the Task Force determined that the city’s handling and disposition of the cases were appropriate, according to Jasso’s office.
Jasso said the ordinance is a good thing for the city, adding that the cases should continue to be monitored.

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TAKING A SECOND LOOK | Councilwoman Delia Jasso’s LGBT Task Force reviewed the 53 complaints that had been filed through February 2011 and decided that the city’s handling and disposition of the cases was appropriate.

“I think that we have some good internal controls in place and we’re a lot farther than we were 10 years ago, thank goodness,” Jasso said. “I think that it’s something we need to monitor to make sure we are disposing cases correctly and add to it as much as we can going forward.”

Ken Upton, supervising senior staff attorney in Lambda Legal’s Dallas office, said a city nondiscrimination ordinance is important in a state like Texas — which doesn’t have a state law barring LGBT discrimination.

But he said cities can only do so much with investigating and enforcing a maximum $500 fine for the misdemeanor offense.

“It’s helpful to have a city stand up for the principle that discrimination is wrong,” he said. “The bottom line is it’s not a solution. The solution has ultimately to come from higher up, either from a state or federal level.”

Texas is one of 28 states and the District of Columbia where cities and counties have ordinances prohibiting LGBT discrimination.

The federal Employment Non-Discrimination Act, which would ban anti-LGBT discrimination in employment but not housing or public accommodations, is pending in Congress.

Only 16 states and the District of Columbia have state laws banning sexual orientation and gender identity and expression discrimination, while five ban discrimination based only on sexual orientation, according to the National Gay and Lesbian Task Force. Many of those states ban discrimination in employment, housing and public accommodations.

Dallas, along with Fort Worth, Austin and El Paso, at least make a statement by having LGBT-inclusive nondiscrimination ordinances in place, Upton said, because they instill an amount of protection when the state does not.

“There is a sense in which Dallas does kind of stay a step above Texas generally, but it’s never going to be enough because cities can only do so much,” he said.

As for Rodriguez’s case, Upton said it could be the case that determines if the ordinance has ultimately been effective. He said the religious exception should not apply because the Tom Landry Fitness Center is a public gym that anyone can join.

“My analysis of it without having seen specifically what they’re saying is that it ought to be a pretty simple case,” he said. “The fact that they’re discriminating based on sexual orientation, there’s no religious exception for that in a public accommodation.”

The City Council also passed a policy in 2002 that requires contractors hired by the city to have LGBT-inclusive nondiscrimination policies, but many people in Dallas have been unaware of this in the past.

Upton said while the community has become more knowledgeable about the ordinance over the years, many people are unaware of the contractor policy.

“It’s only as good as people know about it and I’m not sure that a lot of people do,” he said.

City Manager Mary Suhm said when contractors enter a bid with the city, they are given a list of requirements they must fulfill to be considered, and they must sign to confirm that they meet them all. The LGBT-inclusive nondiscrimination policy is among them.

That policy is driven by complaints in the purchasing department, so contractors aren’t investigated for their policies unless there are problems later, Suhm said, adding that she was unsure how many, if any, complaints have been filed.

Dallas and Austin are among 43 cities in 16 states that require contractors to have LGBT-inclusive nondiscrimination policies, in addition to 18 cities in 14 states that require sexual orientation to be protected, according to the data obtained by the Williams Institute at the UCLA School of Law.

Openly gay former Councilman John Loza, who was on the council at the time, said he didn’t specifically recall the contractor provision, but when the council passed the nondiscrimination ordinance, it was intended to prevent discrimination — but not necessarily in court.

“The ordinance is intended in certain circumstances to promote not necessarily prosecution but mediation and basically an end to a discriminatory policy,” Loza said. “If that can be done without having to go to court, then that’s all to the better.”

Loza said the community needs to be aware of the ordinance and file complaints even though there haven’t been prosecutions because “sometimes the threat of going against an organization or an entity for discrimination is enough to get them to change their policies.”

“I think it’s a good thing that the ordinance is on the books,” he said. “I think we need to probably look at ways to make sure that there’s more awareness of it and that it is vigorously enforced, but I do think it was a pretty substantial achievement in terms of Dallas making a statement with regard to discrimination to the LGBT community.”

The creation of a human relations commission was considered at the time the ordinance was passed, Loza said, but never came to fruition. He said the commission would help investigate the cases and serve as a sounding board if someone believed their case was handled incorrectly. Both Fort Worth and Austin have human relations commissions.

But Davis in Fair Housing said while a commission isn’t discouraged, she doesn’t think it wouldn’t speed up the investigation process.

But a commission would help citizens air concerns they have and review discrimination cases, lesbian activist Pam Gerber said. A member of Councilwoman Jasso’s LGBT Task Force, she said it has had “preliminary discussions” about forming a commission, but Gerber has done more research on her own. She said adding a commission historically costs about half a million dollars a year because the city staffs the commission for support.

“It’s not like you can just throw together a commission,” she said. “It has to be properly staffed in order to do an effective job.”

Gerber said the city needs to continue to educate the LGBT community on the resources available to them with the ordinance. She said the numbers of the last decade are misleading and don’t accurately describe the city’s efforts to fight discrimination.

“I think that initially when one looks at the numbers that exist in retrospect, it doesn’t look so good for the city, but the reality is when you do look at the numbers and what most of the charges were … the fact that most of them weren’t substantiated, it’s very relevant to the number,” Gerber said.

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By the numbers

Since 2002, there have been 59 complaints filed under the city of Dallas’ ordinance prohibiting discrimination based on sexual orientation in employment, housing and public accommodations. Of those:

• 37 were dismissed for ‘no cause’
• 6 were dismissed for lack of jurisdiction
• 4 were dismissed due to uncooperative complainants
• 5 reached conciliation with the city
• 5 reached outside settlements
• 2 are currently open
• 0 have been prosecuted

Source: Dallas Fair Housing Office

This article appeared in the Dallas Voice print edition June 8, 2012.

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