The Giant Loophole In Nashville’s Anti-Discrimination Policy Actually Lets Companies Doing Business With The City Discriminate

So here’s one big loophole in Nashville’s proposed anti-discrimination bill: Any company doing business with the city that is based in another jurisdiction can freely discriminate against LGBTs without fear of losing Nashville’s business. Anti-gay discrimination inside Nashville won’t be tolerated by the city. But contractors based in Florida that are paving Nashville’s sidewalks? Go ahead and call your employees faggots! If council members try to fix the loophole, it could put a huge number of Nashville’s contractors in jeopardy because they don’t have non-discrimination policies in place. Seen another way, it’s an opportunity to force companies across the country to ante up. But that may not even be an option, James Blumstein, a Vanderbilt law professor, explains to Nashville Scene.

Blumstein’s analysis is complex for a napkin, but it carries more weight than the bill’s advocates might hope. Essentially, it says the nondiscrimination ordinance might violate the Commerce Clause of the Constitution because it puts the city in a position of imposing regulations on any company in the world, should that company also be doing business with the city.

In Blumstein’s reading, there are widespread implications if a bill is not limited to employees of city-contracted businesses who work in Davidson County. As he interprets the bill, a company with a Metro contract has to adopt the nondiscrimination policy for all its workers, no matter where in the world they are. That’s a problem if, for example, an out-of-state textbook vendor selling books to Metro schools doesn’t carry an LGBT-friendly personnel policy.

“It’s a risky strategy,” Blumstein says. “When I’ve spoken to various people, I’m not sure they’ve realized the implications of this. I don’t think that was their goal. I think their goal was to say that if Metro is going to buy something from a company, that company should agree to engage in a nondiscrimination policy with respect to those goods or services. And I think that’s a defensible position.”