Alex Blaze

VA attorney general says state can purge gay employees

Filed By Alex Blaze | February 28, 2009 3:00 PM | comments

Filed in: Politics, The Movement
Tags: legislation, Michael Moore, sexual orientation nondiscrimination, tim kaine, Virginia

I got a press release yesterday from a man suing the Virginia Museum of Natural History because they fired him for being gay. Instead of arguing that they didn't fire him for being gay, they're saying that there's no employment protections in that state based on sexual orientation.

While the state legislature has resisted passing any kind of employment protections for LGBT people, Governor Tim Kaine wrote an executive order protecting state employees, which would include people who work at the state museums. But the state attorney general has just filed a non-binding opinion that the governor doesn't have the authority to protect GLB folks by executive order:

"Sexual orientation is not a protected classification under either state or federal law. Attempts to make sexual orientation a protected category under the Virginia Human Rights Act have been continually and consistently rejected by the Virginia General Assembly. The only source of protection for this classification is provided by the Governor's Executive Order #1, which by itself, does not provide a cause of action.

Are they really making the argument that the governor can't determine the hiring practices for the state government?

You might remember that Bill Clinton issued a similar executive order to provide protections for sexual orientation within the federal government. There was a similar problem there, since, without Congressional action on nondiscrimination, fired employees couldn't file a claim with the EEOC:

Second, sexual orientation is not covered by the 1964 Civil Rights Act, which means, as Clinton noted in his statement, that the executive order "cannot create any new enforcement rights," such as the ability to bring bias complaints to the Equal Employment Opportunity Commission (EEOC).

In other words, without ENDA, Clinton's word were just words.

But what they were supposed to do was to get agencies that didn't end discrimination based on sexual orientation to start doing so:

Rob Sadler, an attorney with the Department of Commerce and president of Federal GLOBE (Gay, Lesbian or Bisexual Employees), said that, even though Gay federal workers still lacked civil rights protection, the executive order has "more than symbolic" significance.

While many agencies have announced nondiscrimination policies that include Gays, Sadler said, the executive order will be "another impetus" to get laggard agencies to issue similar statements. Also, he said, the order will spur many agencies to publicize the previously "hidden procedures" available to Gays to complain about discrimination.

It seems like Clinton didn't have the authority to create the new protections through executive order, even for the federal employees. So while the legal system in Virginia might be different, it's looking like this person isn't going to be able to get his suit through.

Meanwhile, the Museum of Natural History should be ashamed of itself, trying to protect its right to fire people based on sexual orientation. Why not just stop the hate instead?

Full text of TIm Kaine's Executive Order Number 1 on Equal Opportunity

Now here his the full text of Executive Order number One from Governor Kaine:

Equal Opportunity

By virtue of the authority vested in me as Governor, I hereby declare that it is the firm and unwavering policy of the Commonwealth of Virginia to assure equal opportunity in all facets of state government.

This policy specifically prohibits discrimination on the basis of race, sex, color, national origin, religion, sexual orientation, age, political affiliation, or against otherwise qualified persons with disabilities. The policy permits appropriate employment preferences for veterans and specifically prohibits discrimination against veterans.

State appointing authorities and other management principals are hereby directed to take affirmative measures, as determined by the Director of the Department of Human Resource Management, to emphasize the recruitment of qualified minorities, women, disabled persons, and older Virginians to serve at all levels of state government. This directive does not permit or require the lowering of bona fide job requirements, performance standards, or qualifications to give preference to any state employee or applicant for state employment.

Allegations of violations of this policy shall be brought to the attention of the Office of Equal Employment Services of the Department of Human Resource Management. No state appointing authority, other management principal, or supervisor shall take retaliatory actions against persons making such allegations. Any state employee found in violation of this policy shall be subject to appropriate disciplinary action.

The Secretary of Administration is directed to review annually state procurement, employment, and other relevant policies for compliance with the non-discrimination mandate contained herein, and shall report to the Governor his or her findings together with such recommendations as he or she deems appropriate. The Director of the Department of Human Resource Management shall assist in this review.

This Executive Order supersedes and rescinds Executive Order Number One (2002), Equal Opportunity, issued by Governor Mark R. Warner on January 12, 2002, and revised on December 16, 2005.

This Executive Order shall become effective upon its signing and shall remain in full force and effect until amended or rescinded by further executive order.

Given under my hand and under the Seal of the Commonwealth of Virginia this 14th day of January 2006.

Timothy M. Kaine, Governor

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Don Sherfick Don Sherfick | February 28, 2009 3:27 PM

Dammned shame.

One clarification concerning the federal employment situation. While it's true that federal employees can't avail themselves of EEO-type procedures for alleged discrimmination based on sexual orientation, a long-standing Supreme Court decision essentially says that most career federal civil servants can only be discharged for reasons "promoting the efficiency of the service". That's legalese for "such cause as has some rational relationship to employment", and sexual orientation as such has been held not to have such a relationship. Still, further legislation is needed to fully protect federal employees in this area.

That's good to know. I wonder if the same protection applies in VA, although it seems like the man here is suing under the executive order.

The Right is on the attack, determined to prove that they can and will continue to push discrimination against us and will continue to persue our marginalisation from society

Can we finally take the offensive and stop standing on the defensive now, can we, can we, can we, please Joe.....?

Just one more thing:

This is the first time that I am aware of that a state arttorney general has statets that the government can, as a policy, purge itself of gays and Lesbians. The implications are chilling, as I've no doubt that other states will follow suit....

Unfortunately, that can happen in almost every state given that governors actually have very limited power to enact laws. Besides, in this case, he was merely extending an order the previous democratic governor signed. Something that lapsed when he left office, and something Kaine didnt see fit to extend until now. According to the reports I've read, it was not something that was important to him, as evidenced by his lack of trying to enact it legislatively, and that this is just political posturing since he and other possible candidates for upcoming 2012 races are trying to get endorsements and money from LGBTQ groups.
(CAN ANYONE SAY OBAMA?) That once in office, he made the decision not to renew that same executive order he just signed. He decided to let lapse quietly. And, since th AG there is elected also, and not nominated by the gov., he releases his legal opinions as he sees fit.

In an attempt to clarify my earlier comment submission, I offer this. After talking to my friends in VA, what I said about the signing appears to be true in as much it was done quietly, and without much fanfare, and was covered in the media just as quietly as a result. As for the lapse in time, they admit that it MAY had to do more with getting it released as part of a package of orders signed. As for the rest, they have never been comfortable with viewing him as an ally, and point to two things that stick out to them. The first is that this lawsuit has been in the courts for two years, and Kaine has yet to publicly go on record forcefully standing behind his executive order, or for the man fired. Nor, did he call for a review of all departmental policies and procedures to ensure the order was carried out. The second, and more telling they say, is that he has not filed a brief, or sent a letter, in support of his own executive order, or on the former employees behalf. Not to their knowledge anyway. And it is only recently, as with many decla1d and undeclared candidates that he has begun his quest for endorsements and money that he has begun touting his record on LGBTQ rights.

"Sexual Orientation is not covered by the 1964 Civil Rights Act"

And that is the problem. ENDA is just a band-aid, and not a very effective one at that. It was made as a compromise, in the expectation that it would cause our opponents to compromise too.

They didn't.

ENDA is not the answer. Adding "sexual orientation or gender identity" to the Civil Rights Act is. That would give protection not just in employment, but in all other areas too. The same protection that Fundamentalists enjoy now.

Robert Ganshorn Robert Ganshorn | March 1, 2009 12:46 AM

It is hard to get inclusive legislation through state legislatures and it is always easier to be against something than for it. I presume the State Attorney General must be an elective rather than appointed position in Virginia.

I believe Don and Zoe are right and the 1964 Civil Rights Act should be amended to be inclusive. Get me Nancy Pelosi on the phone!

Robert Ganshorn Robert Ganshorn | March 1, 2009 12:49 AM

Her email for non residents of the California 8th district is: [email protected]


Indiana has a similar executive order. It was signed by Democratic Governor Frank O'Bannon, re-authorized by Gov Joe Kernan (D - who took office after O'Bannon died in office) and then by Republican Governor Mitch Daniels. It only covers state employees.

And yet, our legislators can't seem to put something similar in place for the entire state. Both parties leaders have indicated their approval of these types of laws, but the rightwing nutjobs in the legislature won't have any of it.

I suggest adding Gender Expression along with Gender Identity.

That way it covers everyone who can be discriminated against based on gender expression.. such as women fired for not being considered feminine enough or for not wearing make-up.

It covers the whole transgender spectrum and a lot of non-TG folk too.