I got a press release yesterday from a man suing the Virginia Museum of Natural History because they fired him for being gay. Instead of arguing that they didn't fire him for being gay, they're saying that there's no employment protections in that state based on sexual orientation.
While the state legislature has resisted passing any kind of employment protections for LGBT people, Governor Tim Kaine wrote an executive order protecting state employees, which would include people who work at the state museums. But the state attorney general has just filed a non-binding opinion that the governor doesn't have the authority to protect GLB folks by executive order:
"Sexual orientation is not a protected classification under either state or federal law. Attempts to make sexual orientation a protected category under the Virginia Human Rights Act have been continually and consistently rejected by the Virginia General Assembly. The only source of protection for this classification is provided by the Governor's Executive Order #1, which by itself, does not provide a cause of action.
Are they really making the argument that the governor can't determine the hiring practices for the state government?
You might remember that Bill Clinton issued a similar executive order to provide protections for sexual orientation within the federal government. There was a similar problem there, since, without Congressional action on nondiscrimination, fired employees couldn't file a claim with the EEOC:
Second, sexual orientation is not covered by the 1964 Civil Rights Act, which means, as Clinton noted in his statement, that the executive order "cannot create any new enforcement rights," such as the ability to bring bias complaints to the Equal Employment Opportunity Commission (EEOC).
In other words, without ENDA, Clinton's word were just words.
But what they were supposed to do was to get agencies that didn't end discrimination based on sexual orientation to start doing so:
Rob Sadler, an attorney with the Department of Commerce and president of Federal GLOBE (Gay, Lesbian or Bisexual Employees), said that, even though Gay federal workers still lacked civil rights protection, the executive order has "more than symbolic" significance.
While many agencies have announced nondiscrimination policies that include Gays, Sadler said, the executive order will be "another impetus" to get laggard agencies to issue similar statements. Also, he said, the order will spur many agencies to publicize the previously "hidden procedures" available to Gays to complain about discrimination.
It seems like Clinton didn't have the authority to create the new protections through executive order, even for the federal employees. So while the legal system in Virginia might be different, it's looking like this person isn't going to be able to get his suit through.
Meanwhile, the Museum of Natural History should be ashamed of itself, trying to protect its right to fire people based on sexual orientation. Why not just stop the hate instead?Source