Skeptics of the unusual kumbaya rhetoric in the Texas Capitol have been waiting with bated breath for Lieutenant Governor Dan Patrick to throw a grenade loaded with red-meat shrapnel into the Senate chamber. Just two months into the 86th Legislature, he may have just pulled the pin.
After a rocky 2017 session pitted two powerful political factions — the business lobby and far-right social conservatives — against each other in Patrick’s infamous bathroom battle, state leaders promised that 2019 was going to be different.
Even though the business lobby had flushed his bathroom bill down the toilet with a plunger, Patrick nonetheless declared victory and appeared eager to play nice this session. The two camps promptly mended fence and found common cause in their desire to crush local governments’ power to set labor mandates like Austin and San Antonio’s paid sick leave ordinances.
Everything was going along swimmingly as House and Senate Republicans introduced ALEC-inspired companion bills — SB 15 and HB 1654 — that would wipe out local entities’ authority to establish standards for a broad swath of employment benefits.
Then, just minutes before the Senate Committee on State Affairs was scheduled to hear testimony on SB 15 last week, the author, state Senator Brandon Creighton, unexpectedly released a revised bill. The new version removes language protecting local policies that prohibit employment discrimination.
While there is debate around what the change actually means, some experts warn that this would gut local LGBTQ protections and put in legal jeopardy nondiscrimination ordinances (NDOs) protecting nearly 6 million Texans from unfair workplace treatment.
“Essentially, it would be no different from putting a sign out front that says ‘We don’t serve gays,’” said Anthony Michael Kreis, a law professor at Chicago-Kent College of Law who specializes in employment law and LGBTQ discrimination.
Austin, El Paso, Dallas, Fort Worth, Plano and San Antonio all have nondiscrimination ordinances that explicitly prohibit employment discrimination on the basis of sexual orientation and gender identity. El Paso and San Antonio’s do not cover private employers, though. San Antonio city officials believe that the bill would not pre-empt their NDO.
LGBTQ advocates have been sounding the alarm since the bill passed out of committee 5-1 last Thursday; it could be voted on by the full Senate as early as Monday. “It’s hard not to see the new bill as an anti-worker, anti-LGBTQ twofer,” said Dan Quinn of the Texas Freedom Network.
Meanwhile, the religious right is counting its blessings.
Patrick’s fingerprints are all over SB 15, which he has said is a top priority in the Senate. The lieutenant governor apparently ordered Creighton to get rid of the nondiscrimination carveout to appease right-wing social advocacy groups such as Texas Values, multiple sources told Quorum Report editor Scott Braddock on Wednesday.
Neither Texas Values nor Patrick’s office responded to requests for comment.
The bill would effectively pre-empt facets of local ordinances that pertain to employment benefits, which is broadly defined in the legislation as “anything of value” beyond monetary compensation. That would nix not only Austin and San Antonio’s paid sick leave regulations, but also Austin’s Fair Chance Hiring ordinance, also known as “ban the box,” which prevents employers from asking about criminal history on applications. Even the city’s rest break ordinance — giving construction workers a water break every four hours — is in the crosshairs of SB 15.
LGBTQ advocates worry the legislation would also strip cities of their ability to prohibit discrimination in how employers provide benefits. This would create a situation in which an employer could pick and choose who is eligible to receive benefits that go beyond state and federal law. For instance, a boss could refuse to offer parental leave and spousal health care coverage to employees in same-sex marriages or grant medical leave to someone undergoing a gender transition.
Advocates are also concerned that the bill could subject an entire NDO, including parts that address things like housing and education, to legal attack. The proposal states that any “ordinance, order, rule, regulation, or policy” is void and unenforceable if it dictates a private employer’s employment benefit.
Creighton insists that it was not his intent to target NDOs with the amended language and that removing the NDO provision was the same as explicitly exempting it. “There’s no intent to deal with any discrimination issues whatsoever by the very nature that they’re not mentioned in the bill,” he told the Observer Tuesday.
What about concerns that his legislation puts the legality of local LGBTQ protections in question? “It could be interpreted any way someone wants to interpret it, but that’s a reach,” Creighton said.
If Creighton truly doesn’t intend to touch NDOs, his critics wonder why he changed the language in the first place. “If it’s not a sneak attack, what’s wrong with leaving the exemption intact?” said Annise Parker, who unsuccessfully tried to pass a Houston nondiscrimination ballot measure as the city’s mayor in 2015.
Creighton’s fellow conservatives are taking the hint.
Welch of the U.S. Pastor Council says that NDOs have rapidly expanded around the state with little legal rationale. He interprets the bill as providing an avenue to curb how cities are able to dictate employment protections for LGBTQ people. Proponents of these provisions, he said, are hawking a “special agenda intended to promote a specific purpose and lifestyle into law and punishing anyone who disagrees with them.”
The heavy-handed revision has some in the business lobby feeling a sense of déjà vu. Many business leaders contend that nondiscrimination ordinances play a key role in deciding where to set up shop and in recruiting employees and that undermining them would, ironically, hurt the Texas economy.
“If the goal of SB 15 is to provide regulatory certainty and predictability for Texas businesses, I’d argue that the exclusion of [the NDO protection language] removes the clarity currently in place regarding NDOs,” said David Edmonson, the Texas representative for TechNet, a trade association that lobbies on behalf of CEOs for some of the biggest tech firms in the country, during testimony at last week’s hearing.
But the Texas Association of Business, which played a key role in killing Patrick’s bathroom bill in 2017, is content to let it play out. “We support SB 15 which achieves our goal of consistent employment regulations in Texas,” said James Hines, the group’s top lobbyist, in a statement to the Observer.
Meanwhile, Creighton says that anyone concerned about employment discrimination policy is free to file a bill in the Legislature, where he says these matters should ultimately be addressed. Dallas Representative Eric Johnson, a Democrat, has filed legislation to create statewide protections against employment discrimination on the basis of sexual orientation and gender identity in each of the three most recent legislative sessions. Senator José Menéndez, a Democrat who represents San Antonio, which passed an LGBTQ protection ordinance in 2013, filed a companion bill in the Senate this session.
Would Creighton vote for such a bill? “I’ve got 7,000 other great ideas and bills to consider, so it just depends on details,” he said.
Editor’s note: This post has been updated to clarify that San Antonio and El Paso’s nondiscrimination ordinances do not apply to the private sector.