As readers of this blog likely recognize, it outrages me that GOP controlled Virginia House of Delegates continues to refuse to add express protections for LGBT citizens from discrimination based on their sexual orientation. All the more so because the gigantic elephant in the room that no one wants to acknowledge - either in the General Assembly or in the Courts in most instances - is that such discrimination is religious based discrimination which is ALREADY ILLEGAL under the state and federal constitutions, not to mention the Civil Rights Act of 1964. Religious based discrimination against gays continues to be given a free pass while if directed at Muslims, Hindus, or some other group that don't live according to Christo-fascist dogma, the victims could quickly find legal recourse. Indeed, it is the Christo-fascists who are currently being given the "special rights" that they so like to whine about.*
Adding to the hypocrisy of the Bob McDonnells, Ken Cuccinellis and Robert Marshalls of the world is the disingenuous manner in which they are now claiming that gays don't need legal protections because there are so few complaints filed based on sexual orientation. If you make the system as unfriendly as possible for such complaints to be filed, it is less than honest to then say "gee whiz, no one is filing complaints." It is equally disingenuous for Bob McDonnell to say that gays have no protections under the federal laws while he's attorney general, yet then state that the 14th Amendment's equal protection clause would be violated by firing a gay employee to appease a a worldwide PR firestorm ignited by his lunatic attorney general, Ken Cuccinelli. Which is it Bob?
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In Virginia, besides the lack of ready administrative courses of relief, another very real problem exists for LGBT victims of employment discrimination: the ability to find legal counsel. My client Michael Moore called 14 other attorneys around Virginia before calling me. All held themselves out as "gay friendly" or were cooperating attorneys for Lambda Legal. None would take the case or assist him. Why? Because in most parts of Virginia attorneys view representing LGBT clients in more public actions such as lawsuits - particularly against a state body - to be potentially damaging to their careers. The Virginia State Bar has done nothing to offset this belief and, indeed, it's lame "diversity project" has been utterly blind to the existence of LGBT clients and their legal needs. Diversity in the eyes of the Virginia State Bar rests solely on the number of black and women attorneys and nothing more.
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The blog, Old Dominion WatchDog has a timely post that looks at the difficulties of bringing a complaint for discrimination based on sexual orientation in Virginia. Here are some highlights:
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The data shows that executive orders established in the last days of Gov. Mark Warner’s administration and the early days of Gov. Tim Kaine’s administration led to four allegations of discrimination based on sexual orientation. And in response to a Freedom of Information Act request, Anne Waring, a DHRM spokesperson, said that only one of those cases evolved into a lawsuit. Today, it sits in litigation, she said.
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Additional DHRM data also show that since 2006 there have been 327 discrimination allegations filed for various reasons against the state — 31 of which were deemed baseless. Republican Del. Bob Marshall, of Prince William, said that DHRM numbers, combined with studies and census data that show homosexuals tend to be more highly educated and that same-sex couples tend to earn more money than married couples, underscore how unnecessary it is to add sexual orientation to the state’s human rights law.
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“If we were talking about discrimination based on, say, race, or gender, or veteran status, I have no doubt that the McDonnell Administration would have a swift and forceful response,” Englin said. “Exactly what number of reported cases of anti-gay discrimination is Gov. McDonnell’s threshold? One? Five? Twenty? How many cases of anti-gay discrimination are ‘okay’ before we make it illegal?” Englin said the number of discrimination allegations based on sexual orientation was “meaningless” because “state employees aren’t stupid” and “they’re not going to report discrimination that is not illegal.”
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McDonnell eventually issued an executive directive, which had no legal teeth, and said that state employees should not be discriminated against based on their sexuality: “Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution,” the directive read. “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.”
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Kent Willis, the executive director of the Virginia American Civil Liberties Union, said the governor’s position leaves gay state employees with one option for filing discrimination suits on the basis of sexual orientation, in federal court under the equal protection clause of the U.S. Constitution.
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But state employees who believe they are discriminated against for reasons other than their sexual orientation can file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC has the power to negotiate settlements, Willis said. Should that fail, employees have the additional option of filing complaints in state court under civil rights law, which does not include sexual orientation in its discrimination list.
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“The difference between being able to file a case with the EEOC and having to retain a lawyer to file a case in federal court is huge,” he said. “It is probably prohibitive for most people because just hiring a lawyer to file a case in federal court costs thousands of dollars and most people don’t have that kind of money.”
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The data shows that executive orders established in the last days of Gov. Mark Warner’s administration and the early days of Gov. Tim Kaine’s administration led to four allegations of discrimination based on sexual orientation. And in response to a Freedom of Information Act request, Anne Waring, a DHRM spokesperson, said that only one of those cases evolved into a lawsuit. Today, it sits in litigation, she said.
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Additional DHRM data also show that since 2006 there have been 327 discrimination allegations filed for various reasons against the state — 31 of which were deemed baseless. Republican Del. Bob Marshall, of Prince William, said that DHRM numbers, combined with studies and census data that show homosexuals tend to be more highly educated and that same-sex couples tend to earn more money than married couples, underscore how unnecessary it is to add sexual orientation to the state’s human rights law.
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“If we were talking about discrimination based on, say, race, or gender, or veteran status, I have no doubt that the McDonnell Administration would have a swift and forceful response,” Englin said. “Exactly what number of reported cases of anti-gay discrimination is Gov. McDonnell’s threshold? One? Five? Twenty? How many cases of anti-gay discrimination are ‘okay’ before we make it illegal?” Englin said the number of discrimination allegations based on sexual orientation was “meaningless” because “state employees aren’t stupid” and “they’re not going to report discrimination that is not illegal.”
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McDonnell eventually issued an executive directive, which had no legal teeth, and said that state employees should not be discriminated against based on their sexuality: “Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution,” the directive read. “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.”
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Kent Willis, the executive director of the Virginia American Civil Liberties Union, said the governor’s position leaves gay state employees with one option for filing discrimination suits on the basis of sexual orientation, in federal court under the equal protection clause of the U.S. Constitution.
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But state employees who believe they are discriminated against for reasons other than their sexual orientation can file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC has the power to negotiate settlements, Willis said. Should that fail, employees have the additional option of filing complaints in state court under civil rights law, which does not include sexual orientation in its discrimination list.
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“The difference between being able to file a case with the EEOC and having to retain a lawyer to file a case in federal court is huge,” he said. “It is probably prohibitive for most people because just hiring a lawyer to file a case in federal court costs thousands of dollars and most people don’t have that kind of money.”
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