HR Management & Compliance

Virginia Senate Passes Sexual Orientation Bias Protection for State Workers

by Michael E. Barnsback

On Monday, February 8, the Virginia Senate passed a bill (SB 66) prohibiting discrimination in state employment that includes sexual orientation as a protected category. Although Governors Mark Warner and Tim Kaine issued executive orders prohibiting discrimination (including sexual orientation discrimination) in the state workforce, this is the first time that either the Virginia Senate or House has passed such a bill. It’s anticipated that the bill will fail in the Republican-controlled House.

Despite the bill’s predicted failure, the Senate’s action highlights the party-line debate over sexual orientation discrimination.

Governor Bob McDonnell (R), who took office in January, broke a 36-year tradition of Virginia governors by not issuing an executive order prohibiting discrimination in the state workforce as one of his first acts in office. The Washington Post quoted the governor as saying that Governor Kaine’s previous executive order is still in effect — with the exception of the provision prohibiting sexual orientation discrimination. As attorney general, McDonnell issued an opinion (Op. No. 05-094) declaring that Governors Warner and Kaine had acted beyond their executive authority in prohibiting sexual orientation discrimination. The Post recently quoted Governor McDonnell as reaffirming that such policy decisions should be left to the General Assembly.

So far in the current session, the Virginia Senate has decided that sexual orientation discrimination should be prohibited. Now, the decision is in the House’s hands. In addition to the Senate bill, the House is considering HB 1287, which would expand the prohibition against discrimination in private employment under the Virginia Human Rights Act to include sexual orientation discrimination. That bill is currently in committee.

It’s doubtful that either bill will pass the Virginia House of Delegates this legislative session. The debate, however, will likely continue. For many private employers in Virginia, the debate at the state level is purely academic. The Virginia Human Rights Act applies only to employers with five to 15 employees. Federal law (Title VII of the Civil Rights Act of 1964) currently doesn’t include sexual orientation as a protected category.

ENDA Still on the Horizon
Larger private employers concerned about the issue should be following the progress of the federal Employment Non-Discrimination Act (ENDA) of 2009 (H.R. 2981), sponsored by Congressman Barney Frank. The proposed legislation would prohibit basing any hiring, firing, promotion, or compensation decisions on actual or perceived sexual orientation or gender identity. In November 2009, Senator Tom Harkin, chair of the Senate Health, Education, Labor, and Pensions Committee, said the Senate would move forward on this bill in 2010. There has been little action on ENDA since the beginning of the year.

Virginia is considered a battleground state for national politics. The current debate in the General Assembly over sexual orientation discrimination may influence the national picture. While Virginia this year likely won’t adopt a law prohibiting sexual orientation discrimination in employment, the Senate’s action in passing SB 66 may provide the impetus to move federal efforts forward to adopt ENDA.

Find more in-depth coverage of SB 66 in the March issue of Virginia Employment Law Letter.

Michael E. Barnsback is a partner with DiMuroGinsberg, PC, in Alexandria and an editor of  Virginia Employment Law Letter. You can follow him on Twitter at @VA_workplacelaw.