Governor Issues Executive Directive Protecting Gays

While his action did not go so far as to support motions in the General Assembly to add sexual orientation or parental status as a protected class under Virginia law, McDonnell did claim that discrimination against gays and lesbians was prohibited under the Equal Protection Clause of the U.S. Constitution and was therefore forbidden by law.

Employment discrimination based on sexual orientation become a raging topic in Virginia this past week after Attorney General Ken Cuccinelli (R) issued a letter to all Virginia public colleges and universities instructing them that by adding protection for sexual orientation or gender identity to their respective nondiscrimination policies, they had in fact acted outside of the authority vested in them by the General Assembly.  

The Cuccinelli letter sparked outrage on college campuses and among civil rights groups in the Commonwealth. The Democratic caucus in the Virginia Senate denounced Cuccinelli’s actions.

Sen. Mark Herring (D-Loudoun and Fairfax) issued a statement saying that, “Cuccinelli’s letter is reprehensible. It not only threatens the quality and competitiveness of Virginia’s higher education system, it severely damages the progress Virginia has made in recent years to embrace diversity and become the best place in America for business.”

Loudoun Supervisor Stevens Miller (D-Dulles) told the Independent, “Mr. Cuccinelli has a strange way of delivering a smaller government. He said 'no' to law-abiding Virginians who wanted to vote in Republican primaries. He said 'no' to loving couples who want to marry. He said 'no' to the EPA's efforts to fight air pollution. And now he's saying 'no' to schools that want to end discrimination. He's the Attorney General of ‘no.’"

The actions of McDonnell, a former Virginia Attorney General himself, would appear to effectively close the discussion as it indicates the governor’s view that such discrimination will not stand scrutiny under the constitution. McDonnell’s directive also affirmatively states that all hiring managers and state employees should make hiring and firing decisions based solely on “an  individual’s job qualifications, merit and performance.” In a letter issued to state employees on March 10, McDonnell’s Chief of Staff Martin Kent specifically asks colleges and universities to enact a standard of conduct that prevents illegal discrimination, including sexual orientation.

David Weintraub of Equality Loudoun noted the language of Cuccinelli's letter, specifically his position that the Attorney General was only enforcing existing law, and said, "It sounds to me as if the governor is acknowledging that 'the law and public policy of Virginia,' as interpreted and explained by his own Attorney General, violates the Equal Protection Clause. That does put him in a bit of a bind. Good for him for trying to address it."

The day after the Executive Directive was released, Cuccinelli issued a brief statement, saying, "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."

McDonnell himself was criticized in January after he chose not to include sexual orientation in the Commonwealth’s nondiscrimination statement by executive order, an action taken by former Governors Tim Kaine (D) and Mark Warner (D). McDonnell claimed his decision was based on separation of powers and that he was precluded from modifying the Virginia Human Rights Act through Executive Order.

While Democratic members of the House of Delegates have called on McDonnell to submit a bill asking for sexual orientation be added as a protected class under Virginia law, there is no indication that McDonnell intends to do so.

Loudoun has also debated protection for gays and lesbians on a local level. In January, the Loudoun Board of Supervisors voted to ban hiring or firing decisions based on sexual orientation or gender identity. Comments by Sterling Supervisor Eugene Delgaudio (R) on the motion received widespread scrutiny and criticism.

Delegate Bob Marshall (R-Loudoun) had requested an opinion from the Cuccinelli on the legality of Loudoun’s decision to add sexual orientation and gender identity to the county nondiscrimination policy.

The statements McDonnell, Cuccinelli and Delgaudio made on the issue of employment discrimination against gays and lesbians were highlighted in a recent edition of the Jon Stewart show. 

The full text of the Governor McDonnell’s Executive Directive Number 1 is included below:

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As the chief executive officer for the Commonwealth of Virginia, I hereby establish a standard of conduct to ensure that all cabinet members, Executive Branch agency heads, managers, supervisors and employees understand and enforce state and federal law prohibiting employment discrimination.

Employment discrimination of any kind will not be tolerated by this Administration. The Virginia Human Rights Act recognizes the unlawfulness of conduct that violates any Virginia or federal statute or regulation governing discrimination against certain enumerated classes of persons. The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.

Consistent with state and federal law, and the Virginia and United States Constitutions, I hereby direct that the hiring, promotion, compensation, treatment, discipline and termination of state employees shall be based on an individual’s job qualifications, merit and performance. No employee of the Executive Branch shall engage in any discriminatory conduct against another employee.

Allegations of any violation of the law or this standard of conduct shall be brought promptly to the attention of the Director of the Department of Human Resource Management for review and corrective action. Any cabinet member, agency head, manager, supervisor or employee who discriminates against a state employee or prospective employee in violation of the law or this standard of conduct shall be subject to appropriate disciplinary action, ranging from reprimand to termination.

I further direct agency heads to ensure that every manager and supervisor in their respective agency is aware of and enforces this standard of conduct. Civility, fair treatment and mutual respect shall be the standard of conduct expected in state employment.

Robert F. McDonnell, Governor