Tuesday, June 2, 2009

Mulroy Confident Anti-Discrimination Resolution Will Hold Up in Court

Posted By on Tue, Jun 2, 2009 at 2:40 PM

dab2/1243972114-steve_mulroy2.jpgBoth during and after Monday's meeting of the Shelby County Commission, questions were raised about the legal impact of the anti-discrimination resolution passed, 9-4, by the commission. Commissioner Steve Mulroy, who authored an anti-discrimination ordinance of his own before yielding to a substitute resolution from colleague Sidney Chism, maintains stoutly that the resolution provides substantial protection for gays, lesbians, and transgendered persons who may choose to litigate on the basis of it.

Following is a statement from Mulroy on the issue, dispatched to a reporter at another publication who had raised questions and forwarded also to the Flyer.

I don't think it's correct to say that because the item is a Resolution and not an Ordinance that "it can't be used in court."

If an employee claiming discrimination (wrongful termination, for example) takes her case to the Civil Service Appeals Board and fails to get relief, she can file a Chancery Court suit. In that suit, she would rely on the Resolution and claim that the County violated its own stated, binding policy, and that because of that the Court should order reinstatement.

As a technical matter, she may be relying on the general obligation in Chancery Court for the county not to act "arbitrary or capricious," with the Resolution serving as evidence of that, rather than filing directly to enforce an Ordinance in General Sessions Court. But the distinction seems somewhat technical to me—in either case, the employee is relying on the Ordinance/Resolution in court, and it gives the employee the ability to get a court to issue an injunction against the County.

This was my understanding when I agreed to the substitute language. I just double-checked this with County Atty Brian Kuhn today to make sure I had it right before I presumed to quibble with you.

I hope that clears things up more than muddies things.

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