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:
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