Will Legislature Undo CAN-DO?

It makes perfect business sense that business should know, when they come to Tennessee or when they expand to a new community in Tennessee, what the law is going to be with respect to their employment policies. And for that reason, on a bipartisan basis House Bill 600 was approved by the House Commerce Subcommittee.

Tuesday night Nashville’s Metro Council passed what became known as the “CAN-DO” ordinance, standing for Contractor Accountability and Non-Discrimination Ordinance. About three weeks ago, in anticipation of the passage of CAN-DO, state Rep. Glen Casada (R-Williamson County) tried to pass House Bill 598, which would have prohibited Metro’s ordinance. But when the votes were counted in the House Commerce Subcommittee on a key amendment, there were more “no’s” than “yes’s.” So, Rep. Casada took a step back and tried a different way to undo CAND-DO, this time with a better result.

Metro’s CAN-DO ordinance would require all those who contract with Metro and those who lease any Metro property for a term of more than six months to sign an affidavit stating that that they do not discriminate on the basis of sexual orientation, gender identity, or gender expression (which would include cross-dressing in the workplace).

Frankly, it is not that most business owners want a “right” to discriminate. The ones I’ve spoken with, even the most ardent opponents of the Metro ordinance, prefer to have essentially their own “don’t ask, don’t tell policy.” They don’t want sex being an issue in the workplace, and they don’t want more regulation, in general, as regulation means more expense and more risk of frivolous litigation.

So House Bill 598 was filed in response to the desire for greater power that seems to be gripping local officials, some of whom seem to love the idea of expanding the size, power, and control of their own “kingdoms.” House Bill 598 was drafted to prohibit the 348 municipalities and 95 counties in the state from imposing any of four different mandates on private businesses. The prohibited mandates related to:

  • What kind of antidiscrimination policies they had to have beyond that required by state and federal law,
  • What kind of wages they had to pay,
  • What kind of family leave policies they had to have, and
  • What kind of health insurance they had to provide.
  • But with four different kinds of mandates at issue, the bill had bipartisan support and bipartisan opposition in the House Commerce Subcommittee.

Over time it became clear that some Subcommittee members were having trouble getting a grasp on what House Bill 598 did and didn’t do, and opponents of the measure were more than happy to feed the confusion. And some thought that the provisions regarding wages needed to be flushed out better in view of the ongoing debate over “living wage” ordinances in Tennessee.

But during the lobbying process it become clear that most Commerce Subcommittee members, on a nonpartisan basis, understood what Metro’s CAN-DO ordinance did, and they thought it beyond the kind of power cities needed. As House Speaker Harwell said yesterday, “When a local government mandates to private businesses what their policy regarding employment should be, I do think it’s enough for the state to step in and say that’s not appropriate.”

That’s when Rep. Casada wisely decided to simplify the issue to the one issue on which there was growing agreement and began to push House Bill 600. This new bill says that there will be a uniform definition of “discriminatory practices” in Tennessee. In other words, if there are to be any new protected classes of citizens, the state should make that determination so that the law would apply uniformly throughout the state.

Many have said it is an “anti-gay” ordinance, and that it attacks “gays.” But those critics cannot look beyond their own narrow agenda to recognize the truth of what Speaker Harwell said. Businesses do not need a hodgepodge of different antidiscrimination policies with which they have to comply as they expand their business from community to community, and the expansion of businesses is something that, in this economy, we should all want to see happening.

Those critics also fail to see that House Bill 600 does not target any particular group. In fact, the group of people most subject to discrimination in the workplace are those whose weight is beyond that which our body-conscious culture seems to prefer. And we all know that those whose stature, not heart or skill, isn’t what is considered within “normal” range often get the short end of the employment stick. And there is no doubt that stature is an immutable characteristic.

And those critics forget that there is nothing in House Bill 600 that would prohibit any group of people from making their case to the state legislature that their “group” needs special employment protections. In fact, Rep. Sherry Jones (D-Nashville) and Sen. Beverly Marrero (D-Memphis) have filed such a bill, House Bill 1317. The caption of the bill says that the bill “adds sexual orientation to the list of characteristics on which discrimination is prohibited in employment, public accommodations, and housing and financing.”

In fact, House Bill 1317 makes the claims of opponents disingenuous. Rep. Casada’s House Bill 600 does not prevent advocacy for “gay rights,” but puts that advocacy where it belongs—at the state level. That the path to success advocacy might be harder at the state level does not change the validity of the policy that the state should be in charge of determining if private businesses should have new protected classes of employees mandated into their employment policies.

It makes perfect business sense that business should know, when they come to Tennessee or when they expand to a new community in Tennessee, what the law is going to be with respect to their employment policies. And for that reason, on a bipartisan basis House Bill 600 was approved by the House Commerce Subcommittee (watch video).