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New discrimination prohibitions include sexual orientation

Story by Chris Graham

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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