Monday, March 29, 2010

University Sexual Orientation Nondiscrimination Debate in Virginia

There's an interesting little dust-up down in Virginia. It's particularly interesting to me because it involves my law school alma mater, George Mason University. It also involves Ken Cuccinelli, the current Attorney General of Virginia, who also obtained his J.D. from Mason.

Earlier this month, Cuccinelli issued a letter to Virginia's public colleges and universities (.pdf).The letter provides in part:
"It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including 'sexual orientation,' 'gender identity,' 'gender expression,' or like classification, as a protected class within its nondiscrimination policy, absent specific authorization from the General Assembly."
The gist of the letter is that Virginia's General Assembly has the sole power to add protected classes.

His (and my) alma mater isn't biting. Last week, George Mason's Board of Visitors reaffirmed the University's commitment to nondiscrimination. Technically, they committed to "equal treatment... in any and all contexts," but the explicit reference to the contributions of "lesbian, gay, bisexual and transgender faculty, students, administrators and staff" left little doubt as to their purpose. They also cited concerns over violation of the Equal Protection Clause of the Fourteenth Amendment absent a sexual orientation nondiscrimination policy.

Indeed, some courts have explicitly recognized that the Equal Protection Clause protects public employees from sexual orientation-based discrimination (see, for example, Quinn v. Nassau County Police Department). It's not just the Constitution but also Title VII that should be of some concern to the universities. I know, technically Title VII does not cover sexual orientation or gender identity, but we've seen a blurring of the line lately. There was a Transgender claim worth half a million in a D.C. District Court, and a gay man protected by Title VII in the Third Circuit under a gender stereotyping theory.

Adding to the confusion, Virginia Governor Bob McDonnell issued an executive directive stating that discrimination "based on factors such as one’s sexual orientation or parental status" will not be tolerated. And Cuccinelli issued a follow-up op-ed, stating:
"Critics of my advisory seem to ignore the fact that individuals are already protected from irrational discrimination by a governmental body under the equal protection clause of the Fourteenth Amendment to the United States Constitution."
But he stands by his analysis and points out that adding classes may create a new contractual basis for lawsuits against universities.

I suspect the colleges and universities will keep their policies anyway. Cuccinelli recognizes that the U.S. Constitution protects individuals from "irrational discrimination" (is it assuming too much to think that extends to sexual orientation-based discrimination?). So his advice is that universities can't create their own policies to comply with the U.S. Constitution (and possibly Title VII), absent an act of the Virginia General Assembly? That strikes me as odd, but we'll see what happens.

Image: That's me! That picture was taken on George Mason University's campus in Fairfax, Va by the statue of George Mason on my graduation day. Although, the law school is actually in Arlington, Va.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.