Thursday, February 18, 2010

McDonnell's Exec Order Does Not Protect Virginia's LGBT Statehouse Workers

During his '09 campaign for governor, Bob McDonnell said he would not sign an executive order protecting gay and lesbian employees from workplace discrimination as his predecessors Warner and Kaine had done. McDonnell said that anti-discrimination policies were the purview of the legislature and that he didn't believe that such protections were needed. He added that no one would face discrimination in the workplace on his watch.

The problem is that signing the workplace non-discrimination order is a tradition going back 36 years in the commonwealth and has been the first or second executive order signed by each new governor. McDonnell would have been really hard pressed to justify not doing the same. So, on February 5, 2010, Gov. McDonnell did sign Executive Order 6  which prohibits workplace discrimination on the basis of race, sex, color, national origin, religion, age, political affiliation, or against otherwise qualified persons with disabilities, but not sexual orientation or gender identity or expression.

But as recent history shows, the executive order carries no legal weight. The scope of Executive Order 1 (2006) was tested last year in the case of Moore vs. Virginia Museum of Natural History. Micheal Moore had worked at the museum in Martinsville for several years until being forced to resign in November 14, 2006. Moore had received glowing performance reviews throughout his tenure, but left after enduring months of anti-gay harassment.

Moore filed suite against the museum, represented by attorney/blogger/activist Michael Hamar (Michael in Norfolk). Hamar posted the court's ruling in the case last July:
The Circuit Court for the City of Martinsville has ruled in Michael Ware Moore v. Virginia Museum of Natural History that Executive Order 1 (2006) signed by Virginia Governor (and DNC Chair) Tim Kaine provides no cause of action to gay Virginians fired for discrimination based on sexual orientation nor does it waive the Commonwealth of Virginia’s defense of sovereign immunity against fired gay employees seeking redress.
When asked by the Washington Blade to comment on the ruling, Gov. Kaine's office had this to say:
Gordon Hickey, a Kaine spokesperson, said the governor “feels very strongly” about non-discrimination in the state workforce, but that the executive order would be enforced within the executive branch of government as opposed to the court system.“The executive order remains in place, and it will be enforced as an internal policy,” he said. “If anybody is found to have been fired or discriminated against based on sexual orientation, they can be dealt with through personnel procedures of the state.”
In other words, the previous Executive Orders were only personnel policies that only applied to Statehouse employees, not state employees in general, and had no legal standing. 

The bottom line is that LGBT Virginians have never had any real protection from workplace discrimination and never will until we demand it. While McDonnell's position on LGBT rights has always been blatantly bigoted, at least he has been honest about it. We knew what we were getting with him and as LGBT Virginians we chose to stay home on election day and let the homophobes have their way. We have only ourselves to blame.  

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