I. SUMMARY CURRENT LAW: Sexual orientation discrimination includes being treated differently or harassed because of your real or perceived sexual orientation -- whether gay, lesbian, bisexual, or straight (heterosexual). This type of discrimination may actually be legal in your workplace, depending on where you reside. The current state of the law in Virginia is leaves most LGBT employees, particularly those employed by private employers, with few legal protections. The following is a summary of current law:
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1. Federal Law: Notwithstanding a number of broad federal laws that bar employment discrimination on the basis of race, national origin, sex, age, and disability, there currently are no federal statutes that bar discrimination based on sexual orientation or gender identity in the private workplace sector. Some federal workers are currently protected from such discrimination based on executive orders and policies. To date, attempts to pass the Employment Non-Discrimination Act, or ENDA, that would prohibit certain private employers – e.g., those with more than 15 employees, subject to certain exemptions - from discriminating based on sexual orientation have been unsuccessful (A version of ENDA has passed the U. S. House of Representatives and is awaiting action in the U. S. Senate; President Bush has threatened to veto ENDA if it passes Congress).
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2. State Laws: Currently, a number of states and the District of Columbia have laws that currently have some form of prohibition against discrimination based on sexual orientation in both public and private jobs. Among these states are: California, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Wisconsin, Illinois and Oregon. (See Appendix 1 for more details). VIRGINIA IS NOT ONE OF THE STATES BARRING THIS TYPE OF EMPLOYMENT DISCRIMINATION.
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II. CURRENT VIRGINIA LAW: In the state of Virginia, subject to certain exceptions to be discussed below, a person--whether gay or straight--can be legally fired or refused a job by a private employer on the basis of that person's real or perceived sexual orientation. A person could lose her or his job simply because he/she is gay, even if he/she is doing a excellent work. It also means that a heterosexual person could be fired from his or her job because someone thinks he or she is gay. Hypothetically, a heterosexual person could be fired because an employer might prefer gay employees. The exceptions to this state of the law are as follows:
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1. Written Contract for a Specific Term: Despite the fact that Virginia is an employment at will state, when an employer enters into a written employment contract with an employee, depending upon the wording of the contract, the employee can only be fired for “cause,” which is usually defined in the contract. Thus, if an employee is fired for something other than cause as defined in the contract, the employee can sue and recover against the employer for breach of contract. It is crucial to make sure that the contract does not contain verbiage that reserves the employer’s right to fire the employee at will.
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2. State Employees: While no Virginia statutes exist which bar employment discrimination against state employees based on sexual orientation or gender identity, by Executive Order 1 (2006), Governor Kaine continued a policy established by his predecessor, Mark Warner, which bars state agencies from discriminating against employees based on sexual orientation. Executive Order 1 (2006) provides in relevant part as follows:
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EQUAL OPPORTUNITY By virtue of the authority vested in me as Governor, I hereby declare that it is the firm unwavering policy of the Commonwealth of Virginia to assure equal opportunity in all facets of state government. This policy specifically prohibits discrimination on the basis of race, sex, color, national origin, religion, sexual orientation, age, political affiliation, or against otherwise qualified persons with disabilities.
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Allegations of violations of this policy shall be brought to the attention of the Office of Equal Employment Services of the Department of Human Resource Management. No state appointing authority, or other management principal or supervisor shall take retaliatory actions against persons making such allegations. Any state employee found in violation of this policy shall be subject to appropriate disciplinary action.
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A copy of the complaint form to be filed with the Office of Equal Employment Services is attached hereto as Appendix 3 and can be found online at the Agency website here: http://www.dhrm.state.va.us/statefrm/discrimfrm.pdf. In Attorney General Opinion No. 05-094, Attorney General, Robert McDonnell issued a non-binding opinion that Governor Kaine did not have the legal authority to add sexual orientation to the protected categories and that only the General Assembly possesses such power. To date No court challenge of Executive Order 1 (2006) has been made and currently Office of Equal Employment Services is investigating at least one complaint made pursuant to Executive Order 1. (2006) against the Virginia Museum of Natural History for firing an employee based on the employee’s sexual orientation.
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Based on that matter, which has been pending for over a year, the principle problem with this legal protection is that the Office of Equal Employment Services seems to lack adequate power to compel the Virginia Museum of Natural History to cooperate with the investigation.
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3. Employer Non-Discrimination Policies: Some large corporations operating in Virginia have their own corporate non-discrimination policies that bar discrimination against employees on the basis of their sexual orientation and, in some case, their gender identity. If one’s employer has such policies, there are typically administrative procedures through corporate human resource offices to secure redress. From a practical perspective, the protections afforded under these corporate policies may prove illusionary depending upon the corporation’s willingness to actively enforce the policies when employee complaints are made. In addition, it may be necessary for the aggrieved employee to take his/her complaint significantly up the chain of command to secure redress. From experience, often, employees are reluctant to fight instances of discrimination under these corporate policies out of fear of retaliation from local supervisors and fellow employees.
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4. Federal Equal Protection Argument: While I am not aware of any Virginia case currently either previously decided or pending that has made this argument, some of the Federal Courts have allowed LGBT employees to prevail in employment discrimination cases against governmental employers utilizing an argument that they have been denied equal protection under the law. In one such U. S. District Court case, the court reasoned as follows analogizing discrimination based on sexual orientation to be in substance like discrimination based on sex:
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1. Federal Law: Notwithstanding a number of broad federal laws that bar employment discrimination on the basis of race, national origin, sex, age, and disability, there currently are no federal statutes that bar discrimination based on sexual orientation or gender identity in the private workplace sector. Some federal workers are currently protected from such discrimination based on executive orders and policies. To date, attempts to pass the Employment Non-Discrimination Act, or ENDA, that would prohibit certain private employers – e.g., those with more than 15 employees, subject to certain exemptions - from discriminating based on sexual orientation have been unsuccessful (A version of ENDA has passed the U. S. House of Representatives and is awaiting action in the U. S. Senate; President Bush has threatened to veto ENDA if it passes Congress).
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2. State Laws: Currently, a number of states and the District of Columbia have laws that currently have some form of prohibition against discrimination based on sexual orientation in both public and private jobs. Among these states are: California, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Wisconsin, Illinois and Oregon. (See Appendix 1 for more details). VIRGINIA IS NOT ONE OF THE STATES BARRING THIS TYPE OF EMPLOYMENT DISCRIMINATION.
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II. CURRENT VIRGINIA LAW: In the state of Virginia, subject to certain exceptions to be discussed below, a person--whether gay or straight--can be legally fired or refused a job by a private employer on the basis of that person's real or perceived sexual orientation. A person could lose her or his job simply because he/she is gay, even if he/she is doing a excellent work. It also means that a heterosexual person could be fired from his or her job because someone thinks he or she is gay. Hypothetically, a heterosexual person could be fired because an employer might prefer gay employees. The exceptions to this state of the law are as follows:
*
1. Written Contract for a Specific Term: Despite the fact that Virginia is an employment at will state, when an employer enters into a written employment contract with an employee, depending upon the wording of the contract, the employee can only be fired for “cause,” which is usually defined in the contract. Thus, if an employee is fired for something other than cause as defined in the contract, the employee can sue and recover against the employer for breach of contract. It is crucial to make sure that the contract does not contain verbiage that reserves the employer’s right to fire the employee at will.
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2. State Employees: While no Virginia statutes exist which bar employment discrimination against state employees based on sexual orientation or gender identity, by Executive Order 1 (2006), Governor Kaine continued a policy established by his predecessor, Mark Warner, which bars state agencies from discriminating against employees based on sexual orientation. Executive Order 1 (2006) provides in relevant part as follows:
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EQUAL OPPORTUNITY By virtue of the authority vested in me as Governor, I hereby declare that it is the firm unwavering policy of the Commonwealth of Virginia to assure equal opportunity in all facets of state government. This policy specifically prohibits discrimination on the basis of race, sex, color, national origin, religion, sexual orientation, age, political affiliation, or against otherwise qualified persons with disabilities.
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Allegations of violations of this policy shall be brought to the attention of the Office of Equal Employment Services of the Department of Human Resource Management. No state appointing authority, or other management principal or supervisor shall take retaliatory actions against persons making such allegations. Any state employee found in violation of this policy shall be subject to appropriate disciplinary action.
*
A copy of the complaint form to be filed with the Office of Equal Employment Services is attached hereto as Appendix 3 and can be found online at the Agency website here: http://www.dhrm.state.va.us/statefrm/discrimfrm.pdf. In Attorney General Opinion No. 05-094, Attorney General, Robert McDonnell issued a non-binding opinion that Governor Kaine did not have the legal authority to add sexual orientation to the protected categories and that only the General Assembly possesses such power. To date No court challenge of Executive Order 1 (2006) has been made and currently Office of Equal Employment Services is investigating at least one complaint made pursuant to Executive Order 1. (2006) against the Virginia Museum of Natural History for firing an employee based on the employee’s sexual orientation.
*
Based on that matter, which has been pending for over a year, the principle problem with this legal protection is that the Office of Equal Employment Services seems to lack adequate power to compel the Virginia Museum of Natural History to cooperate with the investigation.
*
3. Employer Non-Discrimination Policies: Some large corporations operating in Virginia have their own corporate non-discrimination policies that bar discrimination against employees on the basis of their sexual orientation and, in some case, their gender identity. If one’s employer has such policies, there are typically administrative procedures through corporate human resource offices to secure redress. From a practical perspective, the protections afforded under these corporate policies may prove illusionary depending upon the corporation’s willingness to actively enforce the policies when employee complaints are made. In addition, it may be necessary for the aggrieved employee to take his/her complaint significantly up the chain of command to secure redress. From experience, often, employees are reluctant to fight instances of discrimination under these corporate policies out of fear of retaliation from local supervisors and fellow employees.
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4. Federal Equal Protection Argument: While I am not aware of any Virginia case currently either previously decided or pending that has made this argument, some of the Federal Courts have allowed LGBT employees to prevail in employment discrimination cases against governmental employers utilizing an argument that they have been denied equal protection under the law. In one such U. S. District Court case, the court reasoned as follows analogizing discrimination based on sexual orientation to be in substance like discrimination based on sex:
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In the Court's view, harassment in the public workplace against homosexuals based on their sexual orientation falls within the ambit of Annis and its progeny. Just as Annis recognized that harassment of women in the public workplace that transcends coarse, hostile and boorish behavior can rise to the level of a constitutional tort, so too, in the Court's view, does a hostile work environment directed against homosexuals based on their sexual orientation constitute an Equal Protection violation.
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In so finding, the Court notes that in 1996, the Supreme Court struck down, on Equal Protection Clause grounds, a state constitutional amendment categorically prohibiting gay men and lesbians from obtaining state or local legal protection from discrimination based on their sexual orientation. See Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The Romer Court established that government discrimination against homosexuals, in and of itself, violates the Equal Protection Clause. Romer, 517 U.S. at 633-34, 116 S.Ct. 1620, 134 L.Ed.2d 855.
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Whether the federal courts in the 4th Circuit which encompasses Virginia – one of the most conservative Circuits – would follow such reasoning has yet to be seen. Moreover, this argument does not reach private employers.
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5. Virginia Human Rights Act: Pursuant to the Virginia Human Rights Act, Section 2.2-3900, Code of Virginia of 1950, as amended, the Virginia Human Rights Council, has jurisdiction over allegations of employment discrimination filed against employers of six or more employees occurring within the State of Virginia based on race, color, religion, national origin, sex, age, marital status, and physical or mental disability. Note: Sexual orientation and gender identity are not protected under this statute. Nonetheless, filing a complaint may be worth pursuing in conjunction with an equal protection argument similar to under federal law and equating discrimination based on sexual orientation or gender identity, as applicable, with discrimination on the basis of sex or religious belief. A copy of the form to file a complaint with the Council can be found online here: http://chr.vipnet.org/pdf/complaint.pdf.
In the Court's view, harassment in the public workplace against homosexuals based on their sexual orientation falls within the ambit of Annis and its progeny. Just as Annis recognized that harassment of women in the public workplace that transcends coarse, hostile and boorish behavior can rise to the level of a constitutional tort, so too, in the Court's view, does a hostile work environment directed against homosexuals based on their sexual orientation constitute an Equal Protection violation.
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In so finding, the Court notes that in 1996, the Supreme Court struck down, on Equal Protection Clause grounds, a state constitutional amendment categorically prohibiting gay men and lesbians from obtaining state or local legal protection from discrimination based on their sexual orientation. See Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The Romer Court established that government discrimination against homosexuals, in and of itself, violates the Equal Protection Clause. Romer, 517 U.S. at 633-34, 116 S.Ct. 1620, 134 L.Ed.2d 855.
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Whether the federal courts in the 4th Circuit which encompasses Virginia – one of the most conservative Circuits – would follow such reasoning has yet to be seen. Moreover, this argument does not reach private employers.
*
5. Virginia Human Rights Act: Pursuant to the Virginia Human Rights Act, Section 2.2-3900, Code of Virginia of 1950, as amended, the Virginia Human Rights Council, has jurisdiction over allegations of employment discrimination filed against employers of six or more employees occurring within the State of Virginia based on race, color, religion, national origin, sex, age, marital status, and physical or mental disability. Note: Sexual orientation and gender identity are not protected under this statute. Nonetheless, filing a complaint may be worth pursuing in conjunction with an equal protection argument similar to under federal law and equating discrimination based on sexual orientation or gender identity, as applicable, with discrimination on the basis of sex or religious belief. A copy of the form to file a complaint with the Council can be found online here: http://chr.vipnet.org/pdf/complaint.pdf.
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6. General Common Law Theories: If none of the foregoing grounds for non-discrimination are available, the last resort of an aggrieved employee is to try to formulate a basis for redress under general common law theories. The availability of such arguments against an employer or co-workers will be fact specific to the type of discriminatory actions involved. Among the possible theories are: (1) intentional or negligent infliction of emotional distress, (2) harassment, (3) assault and/or battery, (4) invasion of privacy, (5) defamation, (6) interference with an employment contract.
III. CONCLUSIONS: All LGBT employees in Virginia currently lack strong, effective employment non-discrimination protections. Executive Order 1 (2006) currently is the only Virginia law or executive order that specifically includes sexual orientation. On the federal level, until some version of ENDA is enacted, the only argument available to LGBT employees is an equal protection argument along the lines set forth above.
APPENDIX 1
States banning discrimination based on sexual orientation and gender identity/expression (13 states and the District of Columbia) Minnesota (1993); Rhode Island (1995, 2001)1; New Mexico (2003); California (1992, 2003)1; District of Columbia (1997, 2005)1; Illinois (2005); Maine (2005); Hawaii (1991, 2005, 2006)2; New Jersey (1992, 2006)1; Washington (2006); Iowa (2007); Oregon (2007); Vermont (1992, 2007)1; Colorado (2007)
Laws banning discrimination based on sexual orientation (7 states) Wisconsin (1982); Massachusetts (1989); Connecticut (1991); New Hampshire (1997); Nevada (1999); Maryland (2001); New York (2002)
6. General Common Law Theories: If none of the foregoing grounds for non-discrimination are available, the last resort of an aggrieved employee is to try to formulate a basis for redress under general common law theories. The availability of such arguments against an employer or co-workers will be fact specific to the type of discriminatory actions involved. Among the possible theories are: (1) intentional or negligent infliction of emotional distress, (2) harassment, (3) assault and/or battery, (4) invasion of privacy, (5) defamation, (6) interference with an employment contract.
III. CONCLUSIONS: All LGBT employees in Virginia currently lack strong, effective employment non-discrimination protections. Executive Order 1 (2006) currently is the only Virginia law or executive order that specifically includes sexual orientation. On the federal level, until some version of ENDA is enacted, the only argument available to LGBT employees is an equal protection argument along the lines set forth above.
APPENDIX 1
States banning discrimination based on sexual orientation and gender identity/expression (13 states and the District of Columbia) Minnesota (1993); Rhode Island (1995, 2001)1; New Mexico (2003); California (1992, 2003)1; District of Columbia (1997, 2005)1; Illinois (2005); Maine (2005); Hawaii (1991, 2005, 2006)2; New Jersey (1992, 2006)1; Washington (2006); Iowa (2007); Oregon (2007); Vermont (1992, 2007)1; Colorado (2007)
Laws banning discrimination based on sexual orientation (7 states) Wisconsin (1982); Massachusetts (1989); Connecticut (1991); New Hampshire (1997); Nevada (1999); Maryland (2001); New York (2002)
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