McDonnell Backs Off AG Letter, Prohibits Discrimination Against Gay State Workers

By WYDaily Staff Thursday, March 11, 2010

This is one discussion that is over.

Governor Bob McDonnell issued an executive order Wednesday that effectively puts a stop to the controversy over the practical aspects of an opinion by Attorney General Ken Cuccinelli that says state colleges and universities cannot add sexual orientation or gender identity to their nondiscrimination policies.

Cuccinelli sent his letter to universities and colleges last week, informing them that by adding sexual orientation or gender identity to their nondiscrimination policies they were acting outside the authority allowed by the General Assembly. Click here to read the story.

University communities responded quickly, with students establishing online protest sites through social media like Facebook and college presidents issuing statements saying Cuccinelli's letter was "under review" but discrimination of any sort wasn't part of a public institution's playbook. Popular culture weighed in, too, with Jon Stewart taking the attorney general to task in a segment Tuesday night.

McDonnell had been criticized last month when he issued an executive order, effectively law, on workplace discrimination that did not include sexual orientation.

When Cuccinelli's letter was released, McDonnell said he agreed with the legal reasoning, which basically mirrored his while serving as the state's Attorney General. But on Wednesday, McDonnell said the letter had caused anger and confusion among the college community and others, which he could clear up with an executive order.

The order states that "one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution" and is therefore prohibited. Anyone not following the order, McDonnell wrote, will be dealt with through the state's human resources department and be subject to "appropriate disciplinary action, ranging from reprimand to termination."

College of William and Mary President Taylor Reveley, who issued a statement to the college community Tuesday, said the governor's order was reassuring.

"The Governor issued an Executive Directive today opposing discrimination. I spoke about this same matter yesterday in a statement to the William & Mary community," said Reveley in a written statement. "We are reassured by the Governor's words. We never believed that the Commonwealth of Virginia wanted discrimination on its campuses."

According to a report in Thursday's Washington Post, state House Democrats have been keeping alive the discussion on the House floor. On Wednesday, they were countered by Del. Robert G. Marshall (R-Prince William), who suggested the reaction against Cuccinelli might be an attack against his Catholic faith. Marshall told the Washington Post that McDonnell's directive carries no force and is no more than a "press release with fluff around it."

The full text of McDonnell's order is below:

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