Michael Hamar

LGBT Employment Discrimination in Virginia

Filed By Michael Hamar | March 19, 2009 12:00 PM | comments

Filed in: Living, Politics, Politics

In the state of Virginia, subject to certain exceptions to be discussed below, a person--whether gay or straight--can be legally fired or refused a job by a private employer on the basis of that person's real or perceived sexual orientation. Take the case of Michael Moore allegedly fired from his state job for being gay:

Mike Moore.jpg

A man who says he was forced to resign from his state job in Virginia because he's gay has been told he has no recourse under state law to pursue a complaint -- even though the governor issued an executive order to protect employees against such discrimination.

Michael Moore, a former resident of Martinsville, Va., filed a petition in 2006 with Virginia's Department of Human Resource Management, alleging the Virginia Museum of Natural History forced him to give up his job earlier that year because he's gay.

A person could lose his or her job simply because he/she is gay, even if he/she is doing an excellent job. It also means that a heterosexual person could be fired from his or her job because someone thinks he or she is gay. Hypothetically, a heterosexual person could be fired because an employer might prefer gay employees. In theory, equal protection and due process arguments under the U.S. Constitution can be raised. However, the 4th Circuit Court of Appeals is among the most conservative in the country.

Thus, for Virginians the most likely exceptions to this non-gay friendly state of the law are as follows:

Written Contract for a Specific Term: Despite the fact that Virginia is an employment at will state, when an employer enters into a written employment contract with an employee, depending upon the wording of the contract, the employee can only be fired for "cause," which is usually defined in the contract. Thus, if an employee is fired for something other than cause as defined in the contract, the employee can sue and recover against the employer for breach of contract. It is crucial to make sure that the contract does not contain verbiage that reserves the employer's right to fire the employee at will.

Employer Non-Discrimination Policies: Some large corporations operating in Virginia have their own corporate non-discrimination policies that bar discrimination against employees on the basis of their sexual orientation and, in some case, their gender identity. If one's employer has such policies, there are typically administrative procedures through corporate human resource offices to secure redress. From a practical perspective, the protections afforded under these corporate policies may prove illusionary depending upon the corporation's willingness to actively enforce the policies when employee complaints are made. In addition, it may be necessary for the aggrieved employee to take his/her complaint significantly up the chain of command to secure redress. From experience, often, employees are reluctant to fight instances of discrimination under these corporate policies out of fear of retaliation from local supervisors and fellow employees.

Allegedly a third exception exists for state employees pursuant to Executive Order 1 (2006) signed by former Governor Tim Kaine to continued a policy established by his predecessor, Mark Warner (now a U.S. Senator for Virginia), which bars state agencies from discriminating against employees based on sexual orientation.

Executive Order 1 (2006) provides in relevant part as follows:

EQUAL OPPORTUNITY By virtue of the authority vested in me as Governor, I hereby declare that it is the firm 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.

While Executive Order 1 (2006) sounds good, it has yet to be seen whether or not Executive Order 1 (2006) is worth the paper it is written on.

Virginia has no law barring employment discrimination based on sexual orientation, but Gov. Tim Kaine (D) in 2006 issued an executive order barring such discrimination against state workers. Employees working for the Virginia Museum of Natural History receive this protection because the museum is a state-run organization.

But the state attorney general's office issued a pleading Feb. 24 that says Kaine's directive "by itself, does not provide a cause of action" in the case and Moore's petition should be dismissed.

"Sexual orientation is not a protected classification under either state or federal law," the pleading says. "Attempts to make sexual orientation a protected category under the Virginia Human Rights Act have been continually and consistently rejected by the General Assembly."

An appeal is currently pending in the matter and it will be seen whether or not state employees have meaningful protection or not by virtue of Executive Order 1 (2006). Proposed legislation in the recently ended session of the Virginia General Assembly that would have codified employment non-discrimination protections for LGBT state employees was defeated in committee even though polls show that most Virginians support employment protections for gay employees.

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The same thing could happen here in Indiana too. We don't have any protections, but the state employees are covered under an ongoing executive order signed by three governors.