McDonnell's nondiscrimination directive carries force of office, not law
Gov. Robert F. McDonnell's (R) decision to issue an executive directive prohibiting discrimination in the state workforce including on the basis of sexual orientation when he had previously resisted issuing an executive order on the same topic has raised some questions about the difference between the two gubernatorial actions.
As we mentioned in this morning's story on the topic, an executive order carries the force of law. An executive directive, on the other hand, was a creation of Gov. Mark R. Warner (D). The rarely issued directives are policy statements, in this case a direction to employees from their boss that carries the imprimatur of the executive office.
So what does McDonnell's directive really mean?
On Wednesday, the governor explained to reporters that in this instance, he believed the executive orders he had always resisted on discrimination, such as the one issued by Warner and Gov. Timothy M. Kaine (D), gave employees the ability to sue in state court if they felt they had been the subject of bias for being gay. He argued only the General Assembly has the ability to provide employees recourse to the courts.
But his directive, he said, would give employees or potential hires a pretty powerful tool to use if they felt they had been the victim of discrimination: They could complain to human resources, and if their complaint was founded, they would know their discriminator would face disciplinary action, including reprimand or termination, at the direction of the governor.
Of course, the discussion on the gay rights issue has long been a much broader debate over tone and symbolism. Regardless of the technicalities, McDonnell's statement was his most forceful yet in indicating that he believes sexual orientation is a reason that a person might be discriminated against in hiring or firing (though he insisted such instances are exceptionally rare in Virginia's state workforce) and that he would not tolerate such behavior.
Likely largely for reasons of symbolism, many of those who had been pushing for an executive order were applauding McDonnell's move last night, although promising to continue working to codify nondiscrimination in Virginia's law.
"Whatever you want to call it, this is a step forward," said Del. Adam P. Ebbin (D-Alexandria), the General Assembly's only openly gay member, who has pushed for years for a law on the issue. "The semantics perhaps allow the governor to operate within the guidelines of his opinion on this as attorney general. Nonetheless, this is a step forward and a recognition that Virginia needs to be a more welcoming state."
Likewise, several college presidents wrote letters to their students indicating that McDonnell's statement should reassure them about where their state government stands on the issue.
But the middle ground solution failed to please everyone. "There's no such thing as an executive directive. It's a press release with fluff around it," said Del. Robert G. Marshall (R-Prince William), who opposes nondiscrimination legislation.
And from the other side of the debate, Democratic Party of Virginia executive director Dave Mills called the move "a half-move necessitated by a political crisis" and said McDonnell should stop playing "legal games" and send legislation on the topic to the General Assembly.
March 11, 2010; 7:52 AM ET
Categories: Ken Cuccinelli , Mark Warner , Robert F. McDonnell , Rosalind Helderman , Timothy M. Kaine
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