VA ACLU Calls Out City Council’s Meaningless Commitment to Protect LGBT City Empoyees
The VA ACLU has sent a letter to the City of Richmond, including Mayor Jones and all City Council members, saying a non-discrimination ordinance passed in May of this year lacks any real protections for LGBT city employees.
“The amended language undercuts the non-discrimination protections… by introducing uncertainty as to whether discrimination based on sexual orientation is or is not a violation of the city’s non-discrimination policy,” said Clair Guthrie Gastañaga, Executive Director of the VA ACLU.
In the May city Council meeting, an ordinance updating the city’s Personal Rules and For Classified Service manual was passed, and City Council amended the city’s Equal Opportunity section of the document to include sexual orientation and sexual identity.
Shortly after counsel approved this amendment, an amendment was added in parenthesis that said “to the extent now or hereafter permitted or required by law.” This amendment effectively neutered any authority behind the non-discrimination clause which hoped to protect LGBT city employees until the state’s non-discrimination law also included sexual orientation and gender identity.
In the ACLU Letter, Gastañaga goes on to say that the city has the “authority, responsibility, and power” to protect city residents and employees. “by passing legislation undermining that objective, members of the city council acted contrary to their sworn duty to uphold the Constitution and the laws of the US…”
Gastañaga cites both a 2011 Mayoral Executive Directive and a 2010 Executive Directive from Gov. Bob Mcdonnell which state discrimination based on sexual orientation and gender identity violates the Equal Protection Clause of the US constitution, and will not be tolerated.
The May amendment, which binds LGBT non-discrimination to state law, actually overrides both executive orders, according to Gastañaga. Had the additions not been made, there would have been no issues at the present time. “The nondiscrimination policy as set forth in the executive directive is not only permissible, it is essential to ensure that the city adheres to its constitutional obligations.”
To clarify the rulings on SO and GI being protected classes, Gastañaga also mentions the recent case of a trans-woman winning a discrimination case after she argued she had been targeted because of her perceived gender. This case has led the EEOC to expand Title VII to include gender identity, granting EEOC protection in future cases around this issue.
While all this talk of constitutional protections and EEOC complaints seems to provide a glimmer of hope for protecting LGBT city employees, Gastañaga couldn’t say whether the Mayor’s or the Governor’s Executive Directives provided any clear legal protections. “I believe that the Mayor’s executive directive afforded employees some protection by making it clear that those who discriminated against other employees based on sexual orientation or gender identity would violate the constitution and city policy and would be subject to disciplinary action,” said Gastañaga via email.
Additionally, beyond the amendment that voids the EEOC protections from the May council meeting, there is no mention of sexual orientation or gender identity in the city’s employment manual (page 40, section 7.4) under the grievances section which lists what classes are protected and how to file a discrimination complaint.
The Richmond City Attorney’s office had not returned phone calls by press time, we will update this story with a response from the city when it becomes available.
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