Thursday, September 01, 2011

Watchdogging for any progress on nondiscrimination beyond the shallow symbolism of council votes

Almost exactly two years ago the local GLBT tabloid hailed the council vote for adding sexual orientation to Metro's nondiscrimination policy:

Sponsored by freshman Council member Megan Barry and co-sponsored by nine other members, BL2009-502 ensures that Metro employees who feel they have been discriminated against based on either or both of these issues now will have redress within the personnel system.

Not so fast. Discrimination watchdogs have been testing the rhetoric that catapulted Megan Barry into the social progressive pantheon against the reality of existing Metro policy. Passage of Barry's bill turned out to be the easy part. Implementation? Not so much.

Take Mike Peden's case: he has been looking past all of the hoopla and pronouncements of success since passage of BL2009-502 and he is alarmed by the slow walk of implementation. About 10 days ago he sent me an email with a link showing that the Nashville Area Metro Planning Organization's expressed hiring policy in an announcement of a planner opening did not include gender identity or sexual orientation.

Here is how the relevant section of the nondiscrimination statement was printed on August 23 on the MPO site:

Equal Employment Opportunity Employer
The Planning Department does not discriminate on the basis of age, race, sex, color, national origin, religion or disability in access to, or operation of, its programs, services, and activities, or in its hiring or employment practices.

That motivated Mike to start contacting Metro Planning staffers and council members to get answers on why both Planning and the MPO were dragging their feet after two years. And those answers did not come easily, quickly, or clearly.

Mike started with the compliance officer of Metro Planning. He asked her the straight-up question, "Which statement [the MPO site's or the Metro government's site's ] is correct for your organization?" The compliance officer, Josie Bass, replied that the MPO's site was correct. She told him that the organization met the minimum federal requirements under law but that could be changed at a future review. Not satisfied, Mike responded, "Is the person being hired for this position an employee of Metro Nashville? If so, then shouldn’t Metro’s statement apply? Are you an employee of Metro Nashville?" Ms. Bass sent back a single "Yes." Mike asked her to clarify what she was saying "yes" to and she wrote back, "Yes, they are a metro employee and yes, Metro non discriminate statement does apply." At that point Mike shared his confusion with me and I have to admit I did not understand how the Metro policy could apply when Ms. Bass had said before that the MPO statement met minimum federal requirements.

In the meantime, Mike contacted CM Jason Holleman and at-Large CM Megan Barry about the loophole. They did not exactly clarify the issue for him. CM Holleman wrote that while MPO used office facilities it was not exactly a "Metro entity". Holleman also said that not all of MPO employees' salaries are paid by Metro and thus they are not classified as Metro employees. Mike's correspondence with CM Barry included the following judgment from council attorney Jon Cooper:

If Metro is the one hiring these employees, then yes, the nondiscrimination policy in Sec. 11.12.130 should apply. However, the MPO is really a creature of federal law. It is comprised of representatives from the federal, state, and local governments, and represents seven counties and the cities within them. So, it is not just a Metro organization. Just because Metro employees work with the MPO does not mean MPO is bound by our nondiscrimination policy. It only prohibits the Metro Government from discriminating in employment practices.

Mike replied with the clear statement, "I would just like an answer -- yes or no -- either they have the policy or they do not." Both Barry and Cooper stated unequivocally that they do not. Mike still does not get it because all of the employees of MPO are listed as Metro employees.

In the wake of all of this I went back to check the webpage where the MPO opening is advertised with Planning's nondiscrimination statement, and lo and behold, someone had revised the statement and added "gender identity" and "sexual orientation" since Mike had first noticed the webpage on August 23:

Equal Employment Opportunity Employer
The Metro Planning Department, on  behalf of the Nashville Area Metropolitan Planning Organization, does not discriminate on the basis of race, color, national origin, gender, gender identity, sexual orientation, age, religion, creed or disability in admission to, access to, or operations of, its programs, services, or activities. Discrimination against any person in recruitment, examination, appointment, training, promotion, retention, discipline or any other employment practices because of non-merit factors shall be prohibited.

I don't know how much influence Mike's tenaciousness had over the re-writing of the statement, but he remains dissatisfied with the limited reach and loopholes of Metro's nondiscrimination policy.

I agree. It's not the vote, but the implementation that matters most.

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