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UPDATED: McDonnell directive prohibits discrimination on basis of sexual orientation

Anne Bartlett

Hoping to quell a growing uproar on Virginia's college campuses over gay rights, Gov. Robert F. McDonnell (R) issued a directive to all 102,000 state employees Wednesday that prohibits discrimination in the state work force, including on the basis of sexual orientation, and warns he will reprimand or fire anyone who engages in it.

McDonnell's directive comes a week after Attorney General Ken Cuccinelli distributed a letter to the state's public colleges and universities asking them to remove references to sexual orientation from their campus nondiscrimination policies. Cuccinelli argues only the General Assembly has the authority to extend legal protections to gays.

McDonnell has said he supports the legal reasoning of that opinion, which mirrored his own advice on the issue as attorney general. The governor said Wednesday he continues to believe that without legislative approval, universities and state agencies cannot issue orders that would allow employees or others the ability to sue in state court over discrimination on the basis of sexual orientation.

And, in a departure from his Democratic predecessor's stance, McDonnell last month issued an executive order, which carries the force of law, on the issue of workplace discrimination that did not include mention of sexual orientation.

But McDonnell said Wednesday that Cuccinelli's letter had caused confusion and anger among students, college presidents and others that he could address with a clear statement opposing discrimination and a promise to use the human resources process to punish an employee found to have shown bias.

The directive is a formal statement of McDonnell's position that hiring, promotion, compensation, treatment, discipline and termination of state employees can be based only on an individual's job qualifications, merit and performance.

"We will not tolerate discrimination based on sexual orientation or any other basis that's outlawed under state or federal law or the constitution, and if it is reported, then I will take action, from reprimand to termination, to make sure that does not occur,"

McDonnell told reporters late Wednesday afternoon. "I believe this properly takes care of it and assures the good people of Virginia that we will absolutely not have discrimination in this state."

Describing his statement as a call for "civility and fair treatment," McDonnell said he was encouraging universities and independent state agencies to adopt policies or clarify their existing nondiscrimination statements to ensure they can enforce his directive.

The statement was the most forceful yet on gay issues for McDonnell, who was elected in November on a pledge to focus his energy on jobs and the economy while still upholding conservative social values. McDonnell's move may indicate a split over strategy with Cuccinelli, whose political philosophy he broadly shares.

In a brief statement, however, Cuccinelli applauded McDonnell for the "tone he is setting for the Commonwealth of Virginia."

"I will remain in contact with the Governor and continue to work with him on issues important to Virginians," Cuccinelli's statement continued. "I expect Virginia's state employees to follow all state and federal anti-discrimination laws and will enforce Virginia's laws to the fullest extent."

UPDATE: There's a lot of reaction coming in to this directive.
Attorney General Ken Cuccinelli: " I applaud Governor McDonnell for the tone he is setting for the Commonwealth of Virginia. I will remain in contact with the Governor and continue to work with him on issues important to Virginians. I expect Virginia's state employees to follow all state and federal anti-discrimination laws and will enforce Virginia's laws to the fullest extent.

Lt. Gov. Bill Bolling said: "In recent days, Attorney General Ken Cuccinelli issued a letter to Virginia's colleges and universities informing them that their internal employment discrimination policies could not prohibit discrimination on the basis of sexual orientation because such prohibitions were not authorized under state law. While the Attorney General's legal advice is consistent with that of other Attorneys General before him, it has created some understandable confusion and concern. Earlier today, Governor McDonnell issued a directive reiterating the policy of our administration as it relates to important employment practices. I agree wholeheartedly with that statement."

UVa. President John Casteen said in a statement: "This directive's eloquence and clarity set it apart from many policy statements that come from all sorts of sources. Perhaps needless to say, I am personally grateful to the Governor for it. This had become an uncommonly troubling issue, one that cuts to the core of our common claims to the most fundamental kinds of personal security under the rule of law. Discussion will undoubtedly continue, as it should in a free society that thrives on open discourse. But as rightly alarmed as many of us and I myself were by last week's Attorney General's letter, I was struck through the week by the wisdom and dignity of the discussion that occurred. Let us hope that the subsequent discussion will rise to the level of the model struck in the directive."

Equality Virginia has said: "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."

The Democratic Party of Virginia is not impressed. Executive Director David Mills said: "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."

This is just a sampling. We've already received notes from the Log Cabin Republicans, the president of the College of William and Mary and the Northern Virginia Technology Council, all supporting McDonnell.

By Rosalind S. Helderman  |  March 10, 2010; 7:16 PM ET
Categories:  Ken Cuccinelli , Robert F. McDonnell , Rosalind Helderman  
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Next: McDonnell's nondiscrimination directive carries force of office, not law

Comments

What a coward. McDonnell blames the firestorm over Cuccinelli's directive on "confusion" among those who were reacting to it. It's the same old "I am sorry that you took offense" pseudo apology. McDonnell adds to the nonsense by insulting our intelligence. Hypocrisy abounds.

Posted by: tradeczar | March 10, 2010 8:08 PM | Report abuse

The best way to avoid discrimination and hostile workplaces is by doing research about potential bosses on sites like eBossWatch.

Posted by: patjenks | March 11, 2010 2:51 AM | Report abuse

But if he does take action to "terminate or reprimand" anyone who acts against his stated wishes, he leaves the state open to a lawsuit they can't win: because the employee who discriminated did nothing illegal by either federal or state law, nor by governor's executive order.

In Moore v. Virginia Museum of Natural History, Record #1552-09-03, Michael Moore was forced to resign from the Virginia Museum of Natural History because he is gay. The courts ruled that without legislation on the books, Moore had no legal recourse.

His attorney, Michael Hamar, remarked that he was, and I quote, “disappointed” in the court’s decision. “It looks as if they’re saying the executive order in 2006 doesn’t basically do anything,” .

Gordon Hickey, the former Governor's spokesman, said at the time that because of the Executive Order, at least "Workers who are fired or discriminated against because of their sexual orientation can seek redress through the state's personnel procedures."

But now there's no executive order, so those procedures aren't effective either: and the courts have found the 14th amendment doesn't apply, gays are not a protected class. Cuccinelli's statement that "I expect Virginia's state employees to follow all state and federal anti-discrimination laws and will enforce Virginia's laws to the fullest extent." was made knowing full well that gays can be fired for being gay and no law broken.

The Obama federal executive order is even more subtly ineffective: it requires a complaints procedure that goes through the OCS, who are legally not permitted to investigate whether the complaint is justified or not. Thus all such complaints must remain unresolved without action being taken against the guilty party.

It's all Smoke and Mirrors, because when the rubber meets the road, and a gay talks to lawyers about suing because he's been discriminated against, they'll tell him he's wasting both time and money. He has no case. The Governor's policy can't be enforced, and he knows it.

Posted by: aebrain | March 11, 2010 10:11 PM | Report abuse

The situation has not changed one iota. The AG has total discretion on who he prosecutes and who he doesn't. The message is out to the mob: I will not prosecute you. What a message that is!

The conservative issues used to be small government, responsibility for each penny of taxes raised and spent, a safe country and safe neighborhoods. Today they are: No abortion, no gay rights and no taxes. Fiscal incontinence is what the party in power does. When the new conservatives rule Vice President Cheney's dictum: "Reagan proved that deficits don't matter." is the rule.

I vote for whoever can show good governance and, unfortunately neither party is showing any at any level, whether municipal, state or federal. Ideologues rule the roost and the public just suffers the consequences. I am against abortion, but I will not accept the situation before Roe v. Wade. That was a real slaughter of innocents beginning with fetuses and continuing with the prospective mothers at the hands of furtive abortionists and the prospective fathers. Homicide was the top cause of death for pregnant teenagers.

On gays, I don't approve of their lifestyle, but I am ready to let live so long as they don't interfere with my life. The way the issue has been presented, there is more than one that feels that he is justified in attaacking, hurting and killing any gay. I find that to be beyond immoral, just repulsive.

I am not happy with taxes specially when used for the selfagrandisement of some public offical or some grandiose project which benefits no on. in particular.I do want services and safe roads and safe neighborhoods so I do believe in reasonable taxation.

All of these problems would be resolved with good governance which, unfortunately is nowhere in sight.

Whether Democrat or Republican they seem to forget who elected them and they ony cater to those that financed them. I don't see clearly what the Democrats are trying to do, but voting Republican seems only to compund the problem. I don't see voting Republican in the fall will do anything but gridlock completely the wheels of government. On the other hand how do I express my displeasure at what is happening?

Good governance is what we need but it is nowhere in sight.

Posted by: deannemarein | March 11, 2010 10:55 PM | Report abuse

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