Publix – Employee Owned Company Touted By Forbes As ‘Wal-Mart Slayer’

I will readily admit that I do not like Wal-Mart and deliberately go out of my way to never spend a penny at that retailer.  In many ways Wal-Mart defines what is wrong with much of corporate America nowadays: employees paid serf like wages and greed the main motivation for management and shareholders.  I simply have not desire to in any way subsidize such a company.  Thus, it was interesting to come a cross an article the suggests that Wal-Mart may have met its match in Publix, a Florida based retailer that we frequent when we are in Florida.  Publix is employee owned and stresses both customer service and paying employees a living wage.  Here are highlights from the article:

Walmart, its very name brings with it an image of a soulless corporation, a company which abuses its employees down so much that they will rip the company to shreds on their own internal website when asked. A company reliant on government assistance to keep its employees able to even eat. It is a recipe for disaster. And those who follow the teachings of Milton Friedman and other objectivist economists would try and explain that this is absolutely required for a successful company. But don’t tell that to Publix, which now sits as the most profitable grocer in the United States, holding a remarkable 52.8% of the grocery market in highly competitive Florida, against Walmart’s 14.5%.

How does Publix do it? Are they even more soul crushing, seeking to demoralize employees to the point that they are wage slaves, like McDonald’s does? The opposite, Publix is an employee owned corporation. You read that right, employee owned. The company does well, then the employees do well. This gives your average employee of Publix a stake in improving the companies bottom line, thanks to regular dividends. They do this by retaining customers, through excellent customer service. Even Forbes magazine has come to recognize that the Publix business model is a “Walmart Slayer.” And to add to the fears of the Beast of Bentonville, Publix is expanding into new markets, just as other companies are copying the Publix model.

Publix, through its focus on its staff and customer service, is able to beat Walmart’s shareholder returns, with a compound growth of 18% per year, as opposed to Walmart’s 10.5%. Of course, Walmart is a publicly traded company, while Publix is owned by its employees, so if someone wishes to invest in Publix, they would first need to begin working for Publix, and their rate of ownership is based on their wages. This encourages the hardest workers, those who dedicate themselves to the company, giving them a real stake in the company as they labor.

Publix began 1930 by George Jenkins, and was mocked by other grocers when he opened for offering amenities like chairs to relax in and air conditioning for the customers, combined with award-winning customer service. His store prospered during the Great Depression due to this employee and customer centered model of doing business.

The tragedy for Walmart is that the very model which Publix is an excellent example of, was once touted by Sam Walton himself. He firmly believed that workers who were invested in the company became more motivated, and motivated employees brought in happy customers. Sam Walton would be spinning in his grave if he were to read what the employees of his company thought of it today.

Walmart may have met its match, and its name is Publix.

Disclosure:  My past client, Michael Moore - of the Moore v. Virginia Museum of Natural History - is the stepson of one of George Jenkin's heirs.  She's a wonderful lady and an ardent gay rights supporter.

Virginia GOP (and The Christofascists) Kill Gay Non-Discrimination Bill

While honest and decent people may find grounds to differ on the issue of same sex marriage, polls indicate that some 90% of Virginians believe that employees should not be subject to being fired from their jobs simply because they are gay or lesbian.  Yet once again the Virginia GOP under relentless pressure from the Christofascists at The Family Foundation (an affiliate of the anti-gay hate group, Family Research Council) and the Virginia Assembly of Independent Baptist has killed a bill that would have protected STATE employees from being fired based on their sexual orientation.  Private employers would not even have been covered.  But protecting only state employees was too much for these Christofascist organizations who knowingly disseminate lies and untruths about LBGT individuals virtually daily as they also seek to destroy the separation of church and state in Virginia.  How do the Christofascists brow beat the GOP to go against the views of 90% of Virginians?  They threaten spineless GOP elected officials with primary challenges and, given how the Christofascists have taken over the grass roots of the Republican Party of Virginia, these whore like elected officials do the evil bidding of the haters at The Family Foundation.  The added irony is that Virginia desperately needs to attract new progressive businesses and employers to reduce dependence on federal spending.  Yet, by the killing of this non-discrimination bill today and by passing new racist voter ID requirements, the Virginia GOP has sent a strong message that Virginia is closed for business for all except religious extremists and white supremacists.  The Virginian Pilot has details on today's travesty.  Here are highlights:

Every year, they come to the Capitol, and every year they go away disappointed.  A dozen speakers pleaded with a House subcommittee Tuesday to approve legislation that would prohibit discrimination against state employees on the basis of sexual orientation.

At the end, as it does every year, the Republican-dominated panel tabled the Senate-passed measure (SB701), killing its chances of passage this session.  

"This is a bill about fairness," the patron, Sen. Donald McEachin, D-Henrico County, told the panel. "No one in the state workforce should have to worry about discrimination."

David Hanson, vice president for finance at VCU, said the lack of protection against discrimination is discouraging top talent from joining the faculty.  "It is not just about fairness - it's about business," he said.

Opponents, including the conservative Family Foundation and the Virginia Assembly of Independent Baptists, said there is no evidence that state employees are being discriminated against.  "There is no problem that this bill solves," said Del. Todd Gilbert, R-Shenandoah County. "Once again, we've heard from many people about this specter of oppression that really doesn't exist."

That's easy for Gilbert to say as a white man, retorted Del. Delores McQuinn, D-Richmond, who is black.  "Most white males can go wherever they desire," she said. "But discrimination is alive and well."

The dishonesty of The Family Foundation is stunning. My former client, Michael Moore, the former coach of the VCU volleyball team and many others who have been fired for being gay or lesbian prove that Family Foundation president Victoria Cobb and her minions to be nothing but deliberate liars.  As I have said many times before, in my opinion, the most tawdry whore has more integrity and honesty that Ms. Cobb.  She is a viper and a blight on Virginia.

Virginia Commonwealth University Coach Fired for Being Gay

Many readers may be shocked by the title of this post, but hear in Virginia, LGBT citizens have absolutely zero state law employment protections and since Congress has never passed ENDA, there are no federal law protections either.  This was made abundantly clear by (1) Governor Bob McDonnell's refusal to sign an Executive Order adding sexual orientation to the Commonwealth of Virginia's employment non-discrimination policy, and (2) the refusal of the Virginia Supreme Court to consider an appeal by Michael Moore a state employee fired for being gay in Moore v. Virginia Museum of Natural History.  With virulently anti-gay Ken Cuccinelli the apparent GOP nominee for governor in the 2013 elections, a GOP win would likely guarantee that more anti-gay witch hunts would ensue throughout state agencies and universities.  GayRVA looks at the latest travesty at Virginia Commonwealth University ("VCU").  Here are highlights:

For eight years James Finley went to work for VCU’s women’s volleyball team. For eight years he poured his heart and soul into his team of women. And on Monday November 19th, James Finley was fired. Finley says the reasons for his contract termination are simple. It wasn’t his winning record. It wasn’t his personal commitment to the team. It wasn’t the move to a tougher competing conference his team earned under his guidance. According to Finley, it was because he was openly gay.

People picked the Rams to take 6th place. Instead they took 3rd, with a final record of 25-6 overall in the regular season- they got as far as the semi finals – a solid standing for a team in their first A10 championship.

On Nov. 19th, the Monday after they returned from the championships, Coach Finley had a message waiting for him from AD McLaughlin’s secretary. “They wanted a confidential meeting,” said Finley. He figured it was to discuss his contract renewal – most VCU coaches are on year-to-year contracts, and at the end of seasons, coaches and administration get together to discuss their future together.

But when Finley met with McLaughlin this time, the conversation was different. “He said they wanted to go in a different direction,” said Finley. The new direction did not include Finley as the head coach of his team. It did not include Finley on staff at all.

[T]here were several red flags that popped up throughout the season leading up to this moment.

“From the beginning he interacted with other coaches, staffs, other teams. He participated [with them], and  with ours he didn’t…  At booster events, he avoided me whenever I was there. [I'd be] having a conversation with him and he’d walk away when I was trying to talk to him. I’d say ‘Hi’ and he’d look up at me, and put his head back down and not acknowledge me.”

Finley didn’t think much of the issue as the season passed, but on Oct. 5th, when Pat Stauffer, a 30-year-veteran of VCU athletics and an open lesbian, was demoted from Senior Women’s Administrator to  Sr. Associate AD for Sports Administration. It was too much for Finley, it was another red flag.

Since his meeting with McLaughlin, Finley has taken action within the university system to solve his problem. He met with VCU’s VP of Diversity this week. He was told diversity was one of VCU’s core values, and that an investigation was started to examine his dismissal and his charge of discrimination. When asked what he wanted, Finley said “I’d like to have my job back.”

Virginia lacks sexual orientation in its list of protected classes for employment. However, VCU does include it in their anti-discrimination policy. Finley believes this policy was violated.

John Sternlicht, Finley’s husband and a lawyer, admits it’s very hard to prove discrimination in most cases – you have to look at the entire circumstance to understand what has happened. He believes his husband’s situation, with the lack of normal treatment and the demotion of the other LGBT employee, is evidence enough. “You have to have enough evidence to get your case to a jury or your case is thrown out,” said Sternlicht, “and this would be enough to get to a jury.”

The language McLaughlin used also caused Boyd and her teammates some concern.

“He said ‘We want someone to better represent the school,’ and coach had never done anything to misrepresent the school – he’s always very appropriate and nice to people, even when people are rude to him. I’ve never seen him in my 5 years misrepresent the school in any way.”

Boyd agrees with Finley and does not think this issue comes from the college’s higher-ups. “Our school is very diverse, I wouldn’t really expect this… I don’t think it’s VCU, I think it’s on the administrative side. I don’t want to throw the AD under the bus, but we never had an issue until he got here.”

And if a law suit ensues, who will represent VCU?  You guessed it, Ken Cuccinelli.  Anyone in their right mind should not want to move to Virginia.  And as I have noted many times before, were circumstances different, I'd move from Virginia in a heart beat.  Under Bob McDonnell and the Christofascists at The Family Foundation, an FOTF and FRC affiliate, Virginia is best suited for knuckle dragging Neanderthals.

Religious Based Discrimination and the Moore v. Virginia Museum of Natural History Case

The Washington Blade has a story on the Michael Moore v. Virginia Museum of Natural History case wherein the Supreme Court of Virginia refused to hear Moore's appeal. For those not familiar with the case, Moore was fired by the Museum after its executive director discovered that Moore was gay and even the investigation by the Virginia Department of Human Resource Management found that Moore's sexual orientation was a factor in his firing. The case is important because it shows that currently LGBT Virginians have no employment non-discrimination protections - even when they are state employees. It is likewise important because the Supreme Court of Virginia lacked the courage to even write an opinion laying out its reasoning - I believe because once it began to do so, it would have been impossible to avoid getting into the real underlying bigotry against LGBT citizens: religion.

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While it is true as Greg Nevins of Lambda Legal points out that some courts in other jurisdictions have found for gay plaintiffs under the Equal Protection Clause of the U.S. Constitution - an argument that was made extensively in Moore's briefs - the Supreme Court of Virginia lacked the courage even on this issue to take the step of recognizing the rights of gay Virginians much as it lacked courage in Loving v. Commonwealth when it upheld Virginia's ban on interracial marriage in 1966, only to be reversed a year later by the United States Supreme Court.

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From my research, only two recent appellate court decision have touched on the source of anti-gay discrimination. One such case is Lawrence v. Texas, 539 U.S. 558 (2003). In that case, in striking down the Texas sodomy statute – and indirectly Virginia’s own statute as well – the Court stated in relevant part as follows:
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The condemnation [of homosexuals] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.”
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The other case is Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), where the Iowa Supreme Court recognized that the underlying animus against homosexuals is religious based. Specifically, the Iowa Supreme Court stated in relevant part as follows:
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State government can have no religious views, either directly or indirectly, expressed through its legislation. . . . This proposition is the essence of the separation of church and state. As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.
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Protection against discrimination based on religious belief - or non belief - are already on the books in every state. Sadly, until courts across the board are willing to tackle this reality of religious based discrimination against LGBT citizens head on, we can expect more cop outs like that of the Supreme Court of Virginia in the Moore case. Here are highlights from the Blade story:

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The Virginia Supreme Court has denied a gay man’s effort to obtain restitution after he allegedly was forced to resign from his job at a state museum because of his sexual orientation.
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In a two-paragraph notice issued May 17, the state’s high court said it wouldn’t hear the case of Michael Moore v. Virginia Museum of Natural History because there’s nothing in the situation the justice system could rectify.
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Claire Guthrie Gastanaga, general counsel for Equality Virginia, said the failure of the Virginia Supreme Court to take up the case shows the need for the passage of state legislation that would help protect LGBT Virginians against workplace discrimination.
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“The bottom line is this decision just demonstrates what we’ve held for years — that LGBT employees don’t have any meaningful law to seek redress for discrimination, and frankly, they don’t have any cause of action under the old executive order, either,” she said.
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When he took office this year, Republican Gov. Bob McDonnell didn’t renew the executive order for workplace protection against gays and instead replaced it with a less forceful executive directive.
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Gastanaga said if there weren’t any meaningful protections under Kaine’s order, “there really, really isn’t any protection now” under McDonnell’s directive.

Virginia Supreme Court to Gays - You Have No Employment Protections

The results are in from the Virginia Supreme Court in the Moore v. Virginia Museum of Natural History case. Ducking any discussion of the issues, the Court issued a few sentence letter indicating that Michael Moore's appeal was rejected and that the Court found "no reversible error" in the lower court ruling. For those unfamiliar with the case, the lower court had ruled that Gov. Tim Kaine's Executive Order 1 (2006) was basically worthless and provided Moore - who was fired by the Museum because he is gay - with no cause of action for his wrongful firing. Moreover, the lower court totally ignored arguments concerning the violation of Moore's rights as a citizen under the United States Constitution.

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Since Executive Orders carry more weight than Executive Directives, the Virginia Supreme Court's de facto affirming of the lower court ruling means that Gov. Bob McDonnell's Executive Directive 1 (2010) - issued to quell a political firestorm back in March - is less than worthless. As a result, state employees and students at Virginia's colleges and universities should assume that they have zero protections under McDonnell's Executive Directive and/or college and university non-discrimination policies.

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The message to the larger gay community is that our lives, careers and livelihoods have less value than those of heterosexual Virginians and that religious based discrimination and bigotry is perfectly acceptable notwithstanding the language of the Virginia Constitution or the Virginia Statute for Religion authored by Thomas Jefferson himeself. As for the violation of the federal constitutional rights, the Virginia Supreme Court apparently could care less about the federal constitutional rights of LGBT Virginians.

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Absent a written opinion explaining its action we will never know for certain what truly motivated the Virgina Supreme Court justices. However, with 29 states still permitting gays to be fired based on their sexual orientation and failure to conform with conservative Christian religious beliefs, the Court might have easily been following the thinking found in Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966), wherein the Court stated as follows:
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A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate.
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Today, more than ten years since that decision was handed down by this court, a number of states still have miscegenation statutes and yet there has been no new decision reflecting adversely upon the validity of such statutes. We find no sound judicial reason, therefore, to depart from our holding in the Naim case. According that decision all of the weight to which it is entitled under the doctrine of Stare decisis, we hold it to be binding upon us here and rule that Code, §§ [206 Va. 930] 20--58 and 20--59, under which the defendants were convicted and sentenced, are not violative of the Constitution of Virginia or the Constitution of the United States.
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Fortunately, the United States Supreme Court thought differently and in its decision in Loving v. Virginia one year later it flatly reversed the Virginia Supreme Court's ruling and in the process ending the legality of all laws outlawing interracial marriage in the United States.
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Some things indeed don't change in Virginia - at least not without federal legislation or federal court action. And the message to be taken away by LGBT Virginians? Until ENDA or federal legislation is enacted by Congress the choice is to either (1) remain in Virginia as a second class citizen or (2) leave Virginia. And for those contemplating a move to Virginia? I recommend: don't do it.
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In closing, I stumbled upon an irony just today: the Danville News is bemoaning the fact that in the latest Policom economic strength rankings, Danville ranked 363 out of 366 metropolitan areas. Danville, which is in desperate need of new industry and new businesses, is a mere 30 miles from Martinsville, Virginia. That's right, the home of the homophobic Virginia Museum of Natural History. Does anyone - including the Virginia Supreme Court - honestly think modern, progressive businesses will want to relocate to a backward area like Danville in a state where religious based bigotry is completely tolerated? Somehow I think not.

Moore v. Virginia Museum of Natural History - Update

I survived oral argument before the Virginia Supreme Court this afternoon and according to the boyfriend, my client (pictured at right), his father and a friend of his who were all in attendance, I did a good job. Since it is the first time I have ever made an oral argument to a state supreme court, to be honest, I have no frame of reference for comparison. I hit all of the points I wanted to make and brought in Gov. Bob McDonnell's apparent of heart and belated concurrence with our 14th Amendment equal protection argument in the form of Executive Directive 1 (2010). Ironically, the Richmond Times Dispatch's main editorial this morning was of all things on Virginia's need to extend non-discrimination protections to ALL citizens, including LGBT citizens. Along with U.S. Supreme Court caselaw, I referenced both the morning Times Dispatch editorial and yesterday's Roanoke Times column urging colleges and universities to continue non-discrmination policies that include sexual orientation as reasons why the justices need to resolve the issue statewide once and for all by deciding the Moore case. Now we play the waiting game. Here are highlights from this morning's editorial (Editor's Note: the Richmond Times Dispatch is one of the most conservative papers in Virginia):
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[I]f such laws [non-discriminations laws] are to remain on the books, then the absence of sexuality as a category remains instructive -- and troubling. . . . although we have expressed our reservations regarding hate crimes legislation generally, we find the deliberate exclusion of violence against homosexuals deeply disturbing. The message rings out loud and clear.
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We trust McDonnell's commitment to non-discrimination in state government. We would expect no less from any governor. We also believe it is time for Virginia either to repeal its non-discrimination laws -- or to make them truly comprehensive. As the first option seems unlikely, it is time to act on the second.
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As unfortunately seems to be the norm for many gay rights cases, today's oral arguments drew almost no attention from the mainstream media. Only WRVA-1140 covered the story and interviewed both Michael Moore and myself after the oral argument. Unlike most reporters I have experienced, Jay Hart, the news reporter/anchor we spoke with had actually looked at the briefs in the matter. His audio report on the hearing is here. The following are highlights from the radio stations news web page:
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Richmond, VA (1140wrva.com) - Michael Moore was fired from the Virginia Museum of Natural History back in 2006, and he hopes the state supreme court will listen to him. He and his attorney Michael Hamar had a hearing in which Hamar had 10 minutes to verbally argue... along with his brief... why the court needs to hear the case. He points out although his client was probationary at the time he was fired, a U.S. Supreme Court case says that does not mean he can be denied an appeal when his constitutional rights are violated.
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Moore has moved to Florida and took the flight up to hear the brief argument. He says what happened to him has given him the impetus to get ready to go to law school. He says he called some 15 attorneys, looking for one to take his case, and didn't find one until he contacted Hamar. The Norfolk lawyer says many attorneys will not touch a gay rights case.
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He argued to the 3-justice panel that newspaper editorials are talking about a need for a law and case law, and he pointed out a university official urging an ignoring of state attorney general Ken Cuccinelli's legal opinion that state universities and colleges cannot protect gay students and employees.
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He [Moore] claims the museum's director at the time had said in a meeting three months before firing Moore that he objected on religious grounds to working with a homosexual employee. Moore claims at an August meeting, the director said he would "take care of it" in spite of advice he could not do it. No word on when the justices will decide on hearing the case.

Taliban Bob McDonnell Shows Anti-Gay Bias Again

One can only hope that the folks at Northrop Grumman were listening to Bob McDonnell lie during his radio address today - Taliban Bob says no employment non-discrimination protections for gays are needed in Virginia "based on the numbers he's seen." I guess McDonnell pulled the "numbers" out of his ass or else he parroted whatever was handed to him by Victoria Cobb at The Family Foundation.

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Call me Bob. I can tell you about the regular calls I receive from LGBT Virginians who have lost their jobs because of who they are and the fact that they did not conform to the bigoted religious beliefs of their employers or supervisors. Or McDonnell can ask my client Michael Moore. Or McDonnell can call me about the law firm that forced me out after I came out of the closet. Bob McDonnell needs to get his head out of his ass (or out of Victoria Cobb's and/or Pat Robertson's ass). Or maybe McDonnell is going to instruct Virginia's resident village idiot, Ken "Cooch" Cuccinelli to start enforcing state and federal constitutional equal protections that he says exist for gays and not just for Christianists and teabaggers? I doubt it. Here are highlights from the Richmond Times Dispatch in respect to McDonnell's disingenuous (and false) blather:

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Based on numbers he’s seen, Gov. Bob McDonnell said today he’s not sure the state needs a law protecting people against bias based on sexual orientation. Asked on his monthly radio appearance on WRVA if he would sign such a bill, the governor said, “I don’t know that we need it based on the numbers that I’ve seen.“
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“There really isn’t any rampant discrimination on any basis in Virginia,“ he said. “If you’re going to have a law, it needs to actually address a real problem.“

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Excuse me while I go vomit.

Cuccinelli Flips McDonnell the Finger - and Contradicts AG's Office in Moore Case

I have stated on a number of occasions that in my opinion Virginia Attorney General Ken Cuccinelli is certifiably insane. He is utterly unable to disconnect his religious extremist fantasies from objective reality and hopefully will, sooner or later, do something so off the wall that he finds himself impeached and thrown out of office. In an effort to stop worldwide mockery of the Commonwealth of Virginia (including Jon Stewart's "Gaywatch - the Virginia Addition"), Gov. Bob McDonnell signed Executive Directory 1 (2010) which included statements 100% contrary to both his own prior opinions and statements not to mention Cuccinelli's March 4, 2010 missive to public colleges and universities. One would think that Cuccinelli would have gotten the message after his "public spanking" as one news report described it, but that would be a mistake. Instead, Cuccinelli on his own initiative or on the directions of The Family Foundation reaffirmed his anti-gay policy to colleges and universities. While I do not trust Bob McDonnelll whatsoever, he is not certifiably crazy and it may turn out to be Cuccinelli who is the one ultimately spells the death knell for McDonnell's ambitions for higher office. Here are highlights from the Washington Post on Cuccinelli's continued lunacy:
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Virginia Attorney General Ken Cuccinelli II said Friday that it remains his legal advice that the state's public colleges and universities should remove language dealing with sexual orientation from campus anti-discrimination policies.
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Cuccinelli (R) said he continues to believe that the institutions are limited in their ability to adopt such policies without authority from the General Assembly. The legislature has repeatedly declined to put legal protections for gay men and lesbians into Virginia code. "What I said in my March 4 letter was accurate advice under Virginia law, and it still stands," Cuccinelli said in brief comments to reporters . . .
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Cuccinelli said he does not contest one of the McDonnell directive's central legal conclusions: that discrimination on the grounds of sexual orientation violates the U.S. Constitution, which courts have found protects individuals against irrational bias.
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Jon Blair, executive director of the gay rights advocacy group Equality Virginia asked McDonnell on Friday to appoint a special counsel to enforce his directive. Blair said Cuccinelli's position on the issue makes him and his staff unable to offer legal services on the issue. In a letter to the governor, Blair thanked McDonnell for his directive, which he called a "real step forward," but asked that governor go beyond what Blair termed its "largely symbolic promise" by pushing for legal protections in Virginia code.
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Given that Cuccinelli concedes McDonnell's point on the U. S. Constitution barring discrimination based on sexual orientation, it will be most interesting to see what the AG's office argues on March 31, 2010, in Moore v. Virginia Museum of Natural History. That concession is 108 degrees opposite of the AG's office's stance in its briefs and other filings in the Moore case. Does this statement by Cuccinelli mean his office is going to retract its statements in Moore? Obviously, he cannot have it both ways.

In to the Vortex - Moore v. Virginia Museum of natural History

With all of the political maneuvering by Virginia Governor Bob McDonnell in the wake of Attorney General Ken Cuccinelli's directive to Virginia public colleges and universities to rescind non-discrimination policies that included sexual orientation as an enumerated class - including the Governor's Executive Directive 1 (2010) issued yesterday - would think the situation could not get more convoluted and confusing. Yet, now the Supreme Court of Virginia will hold oral arguments on the case of Michael Moore v. Virginia Museum of Natural History on March 31, 2010. Moore was an employee of the Virginia Museum of Natural History who was terminated in November, 2006, for being gay. The Williams Institute has references to the case here as an case where an gay employee was terminated because of his sexual orientation by a public entity in Virginia. The irony is that yours truly, who is neither a litigation attorney nor an appellate case attorney, now finds himself schedule to to present oral argument on March 31, 2010 before the Supreme Court of Virginia on March 31, 2010. Little did I know when I agreed to assist Michael Moore (pictured above) back in late 2006 because he could find no other attorney in Virginia to help him that circumstances would lead to this point.
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The case has been fully briefed - the Virginia Attorney General's briefs make statements diametrically opposed to statement is Gov. Bob McDonnell's Executive Directive 1 (2010) - and it is hard to tell what the Virginia Supreme Court will rule in the matter. If the Court adopts the Attorney General's arguments in the case, it will confirm that McDonnell's Executive Directive 1 (2010) is a meaningless political stunt. If the Court accepts the arguments in the briefs submitted on behalf of Moore, employment discrimination - at least when involving state agencies and departments - based upon sexual orientation/religious belief will be struck down as illegal under the U.S. Constitution. I am clueless as to how the Virginia Supreme Court will rule, but if the Court rules against Moore, it will likely cut the Governor's latest move off at the knee caps and endanger the prospects of Northrop Grumman moving its headquarters of Virginia. If the Court rules for Moore, Pat Robertson, The Family Foundation and other Christian Right puppeteers of Gov. McDonnell and Attorney General Cuccinelli will be having apoplexy.

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Truth be told, Virginia has a major problem in terms of negative PR and should the Court rule against Moore, chances of Northrop Grumman - not to mention other corporations that afford equal rights and protections to LGBT employees - coming to Virginia may be toast. Candidly, I never envisioned myself involved in a case that could have such severe consequences on the entire Commonwealth of Virginia, not to mention my client. I guess one never knows what fate may lay at one's feet.

Does Tim Kaine Care Anything About Gay Rights?

I and others have written about the recent Virginia Court decision involving Michael Moore, a former resident of Martinsville, Virginia, who was forced to resign from the Virginia Museum of Natural History because he is gay. As Pam Spaulding notes, Virginia has no anti-discrimination law, just Governor Tim Kaine's (who is also the DNC chair) 2006 executive order. I became involved in the case because Moore literally could find no other attorney to assist him after calling over a dozen attorneys. While Lambda Legal had provided him with the names of "cooperating attorneys," it had no interest in getting involved in the case. Likewise, the ACLU and HRC had no interest in getting involved in the case at the outset of the case, an issue I will return to later. In the aftermath of the ruling of the Martinsville Circuit Court, Kaine's office made the following comments to the Washington Blade:

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Gordon Hickey, a Kaine spokesperson, said the governor “feels very strongly” about non-discrimination in the state workforce, but that the executive order would be enforced within the executive branch of government as opposed to the court system.“The executive order remains in place, and it will be enforced as an internal policy,” he said. “If anybody is found to have been fired or discriminated against based on sexual orientation, they can be dealt with through personnel procedures of the state.”

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The statement, of course bears no resemblance to what we witnessed even though Moore filed a complain in accordance with the state's personnel procedures. Indeed, Kaine's office wanted nothing to do with the matter and the subordinate agency that handled the "investigation" was utterly incompetent in my view and seemed more dedicated to protecting the offending state agency than protecting Moore as an employee under the Executive Order. In short, in my opinion, Kaine doesn't give a flip about LGBT issues except for posturing to gain LGBT votes and campaign contributions. I suspect that he signed Executive Order 1 (2006) to fulfill a promise to LGBT organizations in his effort to get elected as Governor. That he is now DNC chair ought to severely disturb LGBT Americans given his disinterest in enforcing his own Executive Order.

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The second issue that this case brings up is the utter lack of support that the majority of LGBT citizens receive from organizations that proclaim themselves to be the protectors of LGBT Americans. When initially contacted, HRC had no absolutely no interest in getting involved because it did not want to upset its "good relationship" with Mr. Kaine. Other than e-mailing me a couple of cases, Lambda Legal was likewise missing in action and only re-contacted me after the Circuit Court ruling. The ACLU was a Jonny come lately in the matter, but at least assisted on drafting the legal memorandum in support of Moore's appeal petition to the Circuit Court pursuant to the state's personnel procedures. The Task Force never responded whatsoever.

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Unfortunately, Moore's experience does not seem to be unique in terms of being left to his own devices when victimized by anti-gay discrimination and bigotry. As one of a small number of out gay attorneys in Virginia, I know as a fact that vast areas of the state have no gay or gay friendly attorneys to potentially take on cases on behalf of LGBT Virginians. I also believe that Virginia is not alone in terms of the lack of available counsel to take on LGBT related cases. Yes, Lambda Legal and the ACLU have limited resources and need to select cases carefully. But something truly needs to be done to provide legal resources to LGBT citizens in areas where there are no gay friendly attorneys or where would be counsel are intimidated against taking on LGBT clients in cases where gay rights are involved.

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Personally, I wonder whether than spending money to go to Washington, D.C., soirees and cocktail parties, perhaps HRC and NGLTF ought to allocate more of their funds to litigation support for LGBT plaintiffs where equality and due process issues are involved. They certainly need to be asking some hard questions to Tim Kaine who seems to have adopted Barack Obama's habit of making statements of support but not following through with meaningful action.

Virginia Court Rules Executive Order 1 (2006) Gives Gays No Cause of Action

The Circuit Court for the City of Martinsville has ruled in Michael Ware Moore v. Virginia Museum of Natural History that Executive Order 1 (2006) signed by Virginia Governor (and DNC Chair) Tim Kaine provides no cause of action to gay Virginians fired for discrimination based on sexual orientation nor does it waive the Commonwealth of Virginia’s defense of sovereign immunity against fired gay employees seeking redress. Executive Order 1 (2006) provides in relevant part as follows:

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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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Other than Executive Order 1 (2006) gay and lesbian Virginians have no state law protections against employment discrimination.

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Michael W. Moore, who sought protection under Executive Order No. 1 (2006) was an employee of the Virginia Museum of Natural History until the late afternoon of November 14, 2006, when he maintains he was forced to involuntarily resign by former Museum Executive Director, Timothy Gette because Moore is gay. Prior to November 14, 2006, Moore had received an employee performance evaluation on October 20, 2006, in which he was evaluated as a “Contributor” based on the Employee Work Profile – Performance Evaluation form signed by both Gette and Nancy Bell, a/k/a Nancy Bell Dethlesfan, Moore’s supervisor. This evaluation qualified Moore for a pay increase.

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In summarily dismissing Moore’s appeal from a determination by the Virginia Department of Human Resource Management, the Circuit Court for the City of Martinsville, Virginia, ignored numerous U.S. Constitutional issues raised in the case and suggests that Virginia state employees leave their federal constitutional rights at the door.

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As I have said before, LGBT citizens considering a move to Virginia from progressive states need to truly think twice before moving to a state where LGBT citizens are in essence 3rd class citizens.