Imbroglio in Virginia over Gay Rights for State Employees

The Commonwealth’s Attorney General and Governor have taken us on a rollercoaster ride over the past week or so over the question whether gay employees of the state have effective protections against sexual orientation discrimination. Here is how the story unfolded.

The new Attorney General, Kenneth T. Cuccinelli, II (R), on March 4th issued an opinion letter, stating that a state college or university could not include “sexual orientation”, “gender identity”, “gender expression”, or “like classification” as a protected class in its non-discrimination policy, absent specific authorization from the General Assembly. And, the Attorney General opined that, given that fact that the Virginia General Assembly has not included any of these categories in the Virginia Human Rights Act which applies specifically to “educational institutions” he found that the universities lacked authority to enact such policies. He went on to state that no state agency can reach beyond the boundaries established by the General Assembly. The Attorney General noted that, since 1997, the General Assembly has on more than 25 occasions considered and rejected bills adding “sexual orientation” to various non-discrimination statutes.

This controversy has a long provenance. In 2006, when the current governor was Attorney General, he issued Opinion No. 05-094 which held that Executive Order No. 1 (2005) issued by then Governor Mark R. Warner (D), an executive order which added “sexual orientation” to the list of protected classes under the Commonwealth’s non-discrimination policy, was beyond the scope of executive authority and, therefore, unconstitutional. That opinion stated, among other things, the following: “Changing public policy of the Commonwealth is within the purview of the General Assembly and, therefore, beyond the scope of executive authority and is unconstitutional.” Ignoring that opinion, then governor Timothy Kaine (D), issued Executive Order No. 1 (2006), prohibiting discrimination in state government based on, among other things, “sexual orientation.”

When former Attorney General McDonnell (R) was elected governor, he revised and reissued the executive order on non-discrimination, and deleted “sexual orientation” from the order, consistent with his opinion as Attorney General. Executive Order No. 6 (January 14, 2010).

On March 10th, in response to the hue and cry over Attorney General Cuccinelli’s opinion letter, Governor McDonnell issued Executive Directive No. 1 (2010), in which he orders that the Executive Branch shall not discriminate in the “hiring, promotion, compensation, treatment, discipline, and termination of state employees” with regard to sexual orientation. However, the Directive does not specifically provide protection from retaliation against employees who make claims of sexual orientation discrimination, which now go to the Commonwealth Director of Human Resource Management. In Virginia, I am told, an Executive Order carries the force of law; whereas an Executive Directive is a statement of policy which is not legally binding.

So, at a practical level, what does all of this mean for gay state employees, including faculty at state colleges and universities? Before the new Governor’s new Executive Order, replacing the Executive Order of Governor Kaine, employees had grievance rights to the office of Equal Employment Services of the Department of Human Resources Management for employment decisions based on sexual orientation, and retaliation against employees pursuing those rights was prohibited. The new Governor’s new Executive Order, despite the Executive Directive of Wednesday, means that employee’s may no longer use the grievance procedure and the remedial provisions of Va. Code §§ 2.2-3000, et seq. (2.2-3004(A)). So, the real action, in a sense, was when the new Governor issued the new Executive Order. The Attorney General’s opinion letter, frankly, seems consistent with the new Executive Order and the prior opinion of the now-Governor when he was Attorney General.

So, we shall see if the General Assembly continues to reject attempts to include “sexual orientation” among protected categories, or whether this brouhaha results in passage the proposed legislation. And, remember, regardless of what may go on in the Virginia General Assembly, the Congress, in all likelihood, will be passing ENDA soon, and that will, except for small employers, effect the same result – a prohibition on employment discrimination in both the public and private sector.

Beneath the sturm und drang of politicians and interest groups positioning for advantage, no one seems to be discussing what, at least to this commentator, seems to be serious questions of law.

First, I sure would like to see someone responsibly address, not with rhetoric but with law, the authority of Governor Kaine (D) and his predecessor Governor Warner (D) for the issuance of an Executive Order prohibiting a form of discrimination that the General Assembly had not prohibited. On its face, it would seem to be almost a legislative act, and thus a usurpation of the power of the legislature. But, then I vaguely recall that President Harry Truman, long before the Congress passed any of the modern Civil Rights laws, had the courage to issue Executive Orders to desegregate the military. But then, there are those who believe that executives often exceed their constitutional powers through the use of executive orders. Having said that, it would be worthwhile if someone in this fight addressed those questions of the powers of an executive.

Second, does anyone know of other instances in the history of the Commonwealth of Virginia where the Governor has refused to follow the advice of his lawyer, the Attorney General. After all, that, as I understand it, is what Governor Kaine did. He didn’t like, presumably for political reasons, the opinion of his Attorney General, so, he just ignored it. In other contexts, to ignore the advice of your lawyer is tantamount to willful indifference to the law and could subject one to severe punitive damages. So, we have a sitting Governor, Governor Kaine, who by the way happens to be a lawyer, ignoring the advice of his lawyer. Pretty interesting what politics will get one to do. I would be interested to see if Governor Kaine ever articulated the legal basis for his defiance of the advice of his lawyer, the Attorney General.

Third, it seems a bit over the top to figuratively place Governor McDonnell in the stock because he, once he became Governor, did precisely what, as Attorney General, he said a Governor of Virginia should do and got elected overwhelmingly with the voters full well knowing what his position was. Wouldn’t it have been extraordinarily hypocritical if he had issued an Executive Order which did not conform with is opinion issued as Attorney General. And, absent some legal articulation as to why his legal opinion as Attorney General is wrong as a matter of Virginia law, it seems pretty hypocritical for the other side in this battle to be criticizing him.

Fourth, now let’s turn to the current Attorney General who has taken nothing but grief for some days. Given the fact that his predecessor had opined that “sexual orientation” is not a proper subject for an Executive Order, and given the fact that there now is no Executive Order prohibiting “sexual orientation” discrimination in state employment in Virginia, how can you fault the Attorney General, as a matter of law, for advising educational institutions that they could not prohibit “sexual orientation” discrimination in the manner they heretofore had? Unless I am missing something (and I am sure someone will let me know if I am), it seems ineluctable that, in those circumstances, the educational institutions should not have been doing what they were doing.

Fifth, it seems that, under Virginia law, the new Governor, in the issuance of his Executive Directive, has done as much as the Governor is empowered to do with the possible exception of his failure to include in the Executive Directive some statement about retaliation.

I am sure that it is fanciful for me to assume that the responses to my questions will be something other than personal attacks, but I have real thick skin, and am used to the personal slurs. I hope that I also get some responsible dialogue about the law.