Virginia's Governor, in Response to an Outcry, Says Workplace Bias Is Banned

March 10, 2010

Days after Virginia's attorney general ignited a controversy by telling public colleges and universities they had no authority to ban discrimination based on sexual orientation, the state's governor issued an executive directive on Wednesday advising all state employees that employment discrimination is prohibited under state and federal law.

In a letter last week, the attorney general, Kenneth T. Cuccinelli II, a Republican, advised the state's public universities and colleges that institutional policies banning discrimination on the basis of sexual orientation were invalid. Only the General Assembly had the authority to extend legal protection to gay state employees, Mr. Cuccinelli said.

That advice drew immediate criticism on campuses and in the news media.

Gov. Robert F. McDonnell, also a Republican, responded on Wednesday with his executive directive reminding state employees that workplace discrimination is illegal.

The directive, which is not as powerful as an executive order, does not in itself ban bias on the basis of sexual orientation. It does, however, cite the Virginia Human Rights Act and the equal-protection clause of the 14th Amendment to the U.S. Constitution as protections against workplace discrimination.

In the directive, Governor McDonnell wrote: "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."

For the Virginia Senate Democratic Caucus, the directive is not enough. "The caucus appreciates Governor McDonnell's directive, but they still feel these protections should be in the state code," said Michael K. Kelly, the caucus's director of communications.

Measures that would add protections for gay and lesbian employees have previously failed in the legislature.

Mr. McDonnell's choice of forbidding bias through an executive directive instead of an executive order, as Virginia's previous two governors had done, may have been for political reasons, said Carl Tobias, a professor of law at the University of Richmond.

Mr. McDonnell was the state's attorney general from 2006 through February 2009, when he resigned to campaign full time for governor. While serving as attorney general, Mr. McDonnell had said that the governor should not have the authority to make an executive order about workplace discrimination at public institutions.

"It would be difficult for him to turn around and issue an order in the face of that," Mr. Tobias said.

He added: "To some extent, I think the governor was trying to put out the fire" over Mr. Cuccinelli's letter.

The outcry, Mr. Tobias said, went beyond the impact on individuals of discrimination in the workplace. People were also concerned about institutions' autonomy and their ability to recruit top employees and students, he said.