New discrimination prohibitions include sexual orientation
Story by Chris Graham
freepress2@ntelos.net
Gov. Bob McDonnell today issued an executive directive clarifying his administration’s position on employment discrimination that makes it clear that discrimination “based on factors such as one’s sexual orientation or parental status” will not be tolerated.
“Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited,” McDonnell wrote in the directive, titled Executive Directive 1.
The directive was issued at the height of a controversy initiated by Attorney General Ken Cuccinelli, who last week wrote a letter to public college and university presidents in Virginia giving them the legal advice that “the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ’sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification, as a protected class within its nondiscrimination policy, absent specific authorization from the General Assembly.”
Cuccinelli, as attorney general of Virginia, is the legal counsel for state agencies and organs of the state including public colleges and universities.
The letter from Cuccinelli appeared to clip the wings of state institutions like the College of William and Mary, which has in place what many consider to be a progressive employment antidiscrimination policy.
McDonnell had been mum on the issue, and had been roundly criticized by civil-rights and civil-liberties groups for leaving sexual orientation out of an executive order on employment nondiscrimination in state government issued by his office on Feb. 5.
Critics suggested that the discrimination issue could hurt the state severely both in hiring in state government and higher education and in the economic-development arena.
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Equality Virginia CEO Jon Blair issued the following statement in response to the Governor’s issuance of Executive Directive #1 today:
“Equality Virginia is gratified that the Governor has responded positively to our call for action. The Governor took a major positive step forward today toward assuring that gay, lesbian, bi-sexual and transgender workers will not be subject to discrimination in state employment. Equality Virginia applauds his implementation of a ‘standard of conduct’ that recognizes that discrimination based on sexual orientation is unconstitutional and establishes a strict prohibition against such discrimination in the state workforce. At the same time, however, the directive is silent regarding discrimination based on gender identity, and does not afford any protection to students at our state colleges and universities, so it is clear that there is much work still to be done.
“Accordingly, Equality Virginia will continue to urge the Governor and the legislature to work together with us to codify workplace protections for all gay, lesbian, bi-sexual and transgender state employees and to support future legislation that protects Virginians from all discrimination based on sexual orientation and gender identity in employment, housing and public accommodations.
“Equality Virginia sincerely hopes that the Attorney General agrees that the Governor’s action today is within his authority and that he will defend the Governor’s enforcement of Executive Directive #1.”
Another LGBT civil-rights leader just e-mailed us to point out that the directive covers only the executive branch, not all state workers, but then also called the move by McDonnell “a step in the right direction.”
We’re still trying to digest this news.
The Log Cabin Republican Club of Virginia today applauded Gov. Bob McDonnell’s just-issued Executive Directive No. 1, which lays out in specific language his stated policy of employment nondiscrimination for executive branch employees. The Governor did not include sexual orientation in his previous Executive Order regarding employment discrimination for all state employees, basing that decision on his belief that he lacks the constitutional power to include sexual orientation in the order.
“This is certainly a step in the right direction,” said David Lampo, vice president of Log Cabin Republicans,” and certainly puts some meat on the bones of his stated policy of employment nondiscrimination.” Lampo stated that such clarification was absolutely essential in light of the recent letter issued by Attorney General Ken Cuccinelli, which not only ordered state colleges and universities to rescind their nondiscrimination policies but also called into question the Governor’s own nondiscrimination policy.
“While we applaud this development,” Lampo continued, “we continue to urge the Governor to support a bill like SB66 that would extend such employment protections to all state employees, not just those in the executive branch. That is the only fair and just outcome to this controversy, and it would end once and for all the Attorney General’s disgraceful attempts to intimidate state colleges and universities into dropping their entirely justified employment nondiscrimination policies.”
The club also thanked Lt. Governor Bill Bolling for his support of the Directive.
As Attorney General, McDonnell claimed that the portion of Kaine’s executive order banning discrimination on the basis of sexual orientation was unconstitional because the protection was not granted by law by the General Assembly. Is his position that the governor can grant this protection to executive branch employees only?
The ACLU of Virginia today welcomed Governor Bob McDonnell’s Executive Directive 1, which instructs state agencies not to engage in employment discrimination, including discrimination on the basis of sexual orientation. Issued earlier today, McDonnell’s directive comes amid a firestorm of criticism generated by Attorney General Ken Cuccinelli, who last week sent letters to every public college in Virginia advising them that state law prohibits policies banning discrimination based on sexual orientation.
In Executive Directive 1, the Governor takes the opposite view from the Attorney General, writing that “discrimination of any kind will not be tolerated” and that “discrimination based on factors such as one’s sexual orientation…violates the Equal Protection Clause of the United States Constitution.”
“We are pleased to see Governor McDonnell’s order prohibiting discrimination of all kinds in state employment,” said ACLU of Virginia Executive Director Kent Willis. “It is a broad, positive statement that sends an important non-discriminatory message to every employee, but especially to the gay and lesbian employees who where targeted by the Attorney General.”
“We hope this is only the beginning,” added Willis, “and that the Governor’s example will inspire legislators to finally pass a law prohibiting discrimination on the basis of sexual orientation and gender identity in both private and public sector employment. We also hope that the Governor will broaden his Directive to make it clear that students are not to be discriminated against and that gender identity is protected the same as sexual orientation.”
McDonnell created his own controversy upon taking office, when he removed from an existing executive order language protecting gay and lesbian state employees from discrimination.
Last week, in response to Cuccinelli’s letter, the ACLU sent its own letter to state university presidents warning them that discrimination on the basis of sexual orientation is prohibited under the U.S. Constitution and offering legal representation to anyone discriminated against because of their sexual orientation. To read a copy of the ACLU’s letter, visit: http://acluva.org/wp-content/uploads/2010/03/20100305CollegeNonDiscrimLtr.pdf.
Democratic Party of Virginia Executive Director David Mills released the following statement Wednesday regarding Gov. Bob McDonnell’s attempt to distance himself from the brewing controversy over Virginia’s discrimination policy:
“While we applaud the administrative gesture made by Governor McDonnell today, his non-binding statement of policy does little to protect Virginians from discrimination. The Governor is instituting half-measures necessitated by political crisis, and the time for these games is over. We call on Governor McDonnell to definitively and permanently eliminate the threat that discrimination poses to the lives, jobs, and welfare of all Virginians.
“Rather than play legal games, Governor McDonnell should just send down a bill that would ban discrimination on the basis of sexual orientation. Under Governors Warner and Kaine, Virginia became the best state for business by enacting the tolerant policies that attract world-class employers to our Commonwealth. No matter how many administrative gestures he makes, the fact remains that Bob McDonnell and his Ken Cuccinelli have rolled back protections against discrimination.”