Delegate Adam Ebbin proposed an amendment to the budget (which will require lay offs and job cuts across the state workforce) that said:
No employee of the Commonwealth, including employees of public institutions of higher education, shall be discharged or laid off from employment based on his race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, genetic information, marital status, disability, sexual orientation or gender identity, or status as a veteran. Any employee discharged or laid off in violation of this subsection may bring an action pursuant to §2.2-2639c. of the Code of Virginia and recover back pay and attorneys fees as provided therein.
Delegate Ebbin made the following points in support of his amendment:
In this budget we are forced to adopt reductions in funding that could lead to the lay off or discharge of hundreds of employees across state government and in our colleges and universities.
These employees have no meaningful protection from lay off or discharge based on factors other than merit such as race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, genetic information, marital status, disability, sexual orientation or gender identity, or status as a veteran.
Although state employees should have some protection from discrimination under the Governor’s executive order, the new Governor has removed protections previously provided for the state’s gay, lesbian, bisexual or transgender employees, saying that it is up to the legislature to set the state’s policy in this regard.
And, even if applicable, the executive order offers little in the way of remedies for an employee who loses his or her job through the discriminatory action of a single supervisor.
Finally, state employees have little protection from discrimination under federal civil rights laws because of a series of Supreme Court decisions that have interpreted the 11th Amendment to the US Constitution as providing state immunity from suit in federal or state court for violations of the federal Civil Rights Act, the Age Discrimination Act, the Americans with Disabilities Act and the Equal Pay Act. It has been the policy and practice of the Office of the Attorney General for at least the last decade to aggressively assert this immunity defense in all discrimination cases brought pursuant to federal law by state employees.
This budget amendment does no more than extend to state employees the same limited right to recover back pay for discriminatory discharge that the state has extended to private employees in businesses with 5 to 15 employees (who also lack federal civil rights act protection). The only difference is that this amendment also protects state employees from discriminatory discharge based on sexual orientation and gender identity and adds protection from discrimination based on “genetic information” a new protection added by the federal Genetic Information Nondiscrimination Act of 2008, that protects employees from discrimination based on the results of genetic testing like testing that reveals a predisposition to breast cancer.
We’ve heard a lot about what’s good for the goose should be good for the gander in the context of debates about extending mandated benefits to both state and private employees alike. It’s time to assure our state employees, that as they face the uncertainty of the current economic and budget crisis, that we believe that they should be protected from discriminatory discharge just like their peers in the private sector.
It’s the right thing to do. And, it’s an action supported by almost 90% of Virginians who agree that even gay, lesbian and transgender people deserve protection from workplace discrimination and the right to work for the government.
I urge you to adopt this amendment.
So, what did the House do with this eminently reasonable proposal?
It ducked taking a stand on what the Governor has said is its job ... setting the personnel policy of the Commonwealth.
Delegate Bob Marshall (again!) moved to "pass the amendment by," a procedural move to kill it.
The House voted in favor of his motion 61-38 after a question from Delegate David Englin made clear that a vote in favor of the motion was a vote to kill the amendment.
You can watch the debate on the amendment: