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Strickland order bans bias against LGBT state workers
Columbus--From universities to the Highway Patrol, no state agency may discriminate by sexual orientation or gender identity in employment decisions, under an order signed last week by Gov. Ted Strickland.
“This is a positive step in the right direction,” said Strickland, “and one we unquestionably have the authority to do.”
The order covers all 60,000 state employees with regard to hiring, layoff, termination, transfer, promotion, demotion, rate of compensation and eligibility for training programs.
It restores job protections dropped eight years ago by Strickland’s predecessor, Bob Taft (see sidebar, below).
“Sexual orientation and gender identity discrimination is currently occurring in state government,” says the text of executive order 2007-10S. “Such discriminatory conduct undermines the effectiveness of employees discriminated against, prevents the state from attracting the best available talent to work on behalf of the people of Ohio, and offends basic notions of human dignity.”
Strickland signed the order in a late morning ceremony May 17, surrounded by 48 lesbian, gay, bisexual and transgender activists, the Ohio Civil Rights Commission, reporters and representatives from progressive employers. These included the Cleveland Clinic, Nationwide Insurance, Ohio State University and Limited Brands.
The order resulted from the relationship between Strickland and the LGBT community that developed prior to his decision to run for governor, and strengthened during the campaign. Strickland looked to LGBT groups like Equality Ohio and the Stonewall Democrats for advice. In return, the LGBT community turned out for Strickland.
Strickland said his administration was put together to honor diversity and respect for all Ohioans, including LGBT ones.
“We have chosen talented and gifted members of the cabinet,” said Strickland, “and prior to coming on, they knew what kind of administration we were going to be.”
Strickland chose Mary Jo Hudson, who is openly lesbian, to head the Department of Insurance, and has placed many openly LGBT people in sub-cabinet posts throughout the administration.
“State and federal law already prohibit a range of discriminatory practices,” the order says. “Ohio law, consistent with federal law, prohibits employers, including the state, from discriminating in employment decisions on the basis of race, color, religion, national origin, veteran status, disability, age or sex. However, there are no such laws that prohibit employers from discriminating in employment related decisions on the basis of sexual orientation or gender identity.”
Executive orders are not law. They are policy declarations of an administration which, in this case, can be the basis for legal action.
The order gives any LGBT employee who believes they were discriminated against the right to file a complaint with the Equal Employment Opportunity section of the state Department of Administrative Services, the same as one would for a complaint of race or religious bias.
Further, the order subjects anyone engaging in anti-LGBT discrimination to discipline equal to that of other discriminatory conduct.
The order will be in effect during Strickland’s tenure as governor. It was Strickland’s tenth executive order, and only the second signed in a public ceremony. The other was his first one, which established ethics requirements for his administration, signed on his first day in office.
Cautious about an anti-bias law
Ohio is now the tenth state with a governor’s order protecting state employees by sexual orientation and the third to include gender identity, after Pennsylvania and Indiana. The other seven are Alaska, Arizona, Delaware, Louisiana, Michigan, Montana and Virginia.
Twenty more states have passed laws covering sexual orientation in all public and private employment and 13 of these include transgender people. Ohio is not among them.
“Strickland’s order puts Ohio back on the correct path,” said gay Columbus Legacy Fund head Elliott Fishman, adding that it could help pass a non-discrimination law that covers all employees in the state, public and private.
“It shows the state and the community that this kind of procedure is easily accomplished and doesn’t create huge waves,” said Fishman.
“Ohio will not fall into Lake Erie because of this.”
Strickland, however, was more cautious at the signing.
Asked if he would sign such a bill, he replied, “I’m not aware that such a law is needed, but at this point, I’m open.”
Strickland continued that he wanted to highlight those companies doing the right thing voluntarily, and he believes that the executive order gives him the bully pulpit to do that.
When told that a non-discrimination bill is expected to be introduced in the legislature later this year, Strickland said, “I’m sympathetic to ending discrimination in the private workplace,” said Strickland, “but I need to see the bill and the need.”
Strickland said he is concerned that the state’s constitutional amendment banning same-sex marriage may make such a law unconstitutional. The 2004 measure also bans civil unions and generally makes it impossible to recognize any couple arrangement outside of marriage.
Though his order prevents discrimination in pay, Strickland believes that if the amendment is judged by the courts to limit an employer’s ability to give domestic partner benefits--equal compensation to spousal benefits--it would be impossible for the state to do so.
Strickland noted the suit against Miami University’s partner benefits by State Rep. Tom Brinkman of Cincinnati, which is currently under appeal.
If Brinkman wins that suit, Strickland reasons, there would be problems with a law.
“I don’t want to engage myself in a lawsuit that would further divide and exacerbate the problem,” Strickland said.
“If the Miami case gives us clarity, we could push for it, if it’s possible,” Strickland said.
“What I did today, I have full authority to do,” Strickland said.
“And we will do other things with the larger goal in mind. We could fight and accomplish nothing, but we want to be smarter so we can do better.”
Equality Ohio director Lynne Bowman responded to one of Strickland’s remarks, saying, “We are well prepared to show [Strickland] the need for the law. His policy staff know it is an issue.”
Equality Ohio director of education and policy Bo Shuff called the compensation matter “a 100 percent non-issue before it starts.”
“The bill we will propose specifically excludes compensation discrimination for that reason,” said Shuff.
An earlier order had a wide effect, and so did its end
Ohio is believed to have been the first state with an executive order protecting state employees by sexual orientation when then-Gov. Richard Celeste, a Democrat, signed his in 1983.
Celeste’s order, number 83-64, also created the State Administrative Commission on Gay and Lesbian Issues, which was part of the Department of Administrative Services.
The measure remained in effect through Celeste’s two terms, which ended in 1991, and through his Republican successor George Voinovich’s eight-year administration. But Republican Bob Taft allowed the order to expire as one of his first official acts in 1999, leaving LGBT state employees with no protection.
Once this was discovered, Taft signed a new order that did not include gays and lesbians, nor any other specific group. It declared a general policy to “prohibit discriminatory employment practices and to ensure that all Ohio citizens have equal employment opportunity,” then recapped federal nondiscrimination guidelines--which do not include sexual orientation.
Taft spokesperson Scott Milburn told the Gay People’s Chronicle at the time that the governor was taking employment discrimination “to the next level,” because “discrimination in state hiring practices is a problem not just for the gay and lesbian community, but for every person.”
Employment law experts almost unanimously disagreed with that analysis.
Taft’s new order “is not worth the paper it’s printed on,” said gay Cleveland employment attorney Tim Downing at the time.
“That type of language is meaningless,” said the Huiman Rights Campaign. “Groups that are historically discriminated against will still be subject to unfair job discrimination. [Taft’s non-specific order] is a clear attempt to gut basic civil rights protections.”
The adverse consequences went further, still.
A few months later, it was discovered that state agencies and boards were changing their relationship to their lesbian and gay clients, even though the clients aren’t state workers.
Most notable was when the Ohio Counselors Credentialing Board and the Ohio Department of Alcohol and Drug Addiction Services merged and had to revise their rules.
The combined agency deleted “sexual orientation” from a set of anti-bias rules that is part of the code of ethics for chemical dependency counselors. It was the only change that was made to the 38 page code.
Senior department staff said they were “streamlining the language” to make it more consistent with Taft’s.
“We thought it should be in line with the language used by the rest of the state,” said department spokesperson Stacey Frohnapfel at the time.
“Randall Weber, our equal employment opportunity coordinator, said the [the old statement that included sexual orientation] wasn’t consistent and should be changed,” Frohnapfel said.
“Sexual orientation” was only returned to the rules when lesbian and gay counselors protested, and Taft issued a memorandum saying the department “misused” his orders.
Elliot Fishman, who is gay and heads the Columbus Legacy Fund, and was an attorney for the Department of Administrative Services during the Celeste administration, said the 1983 order had effects well beyond its stated purpose.
Fishman staffed State Administrative Commission on Gay and Lesbian Issues created by Celeste’s order, and said it allowed his people to go around the state taking testimony for the purpose of documenting discrimination against lesbians and gays in the workplace.
“It was effective in the sense that gays and lesbians felt for the first time, that some in government were going to listen,” said Fishman.
“It was a model of behavior. If the governor said [non-discrimination on the basis of sexual orientation] was important, it was important. Non- discrimination on the basis of sexual orientation became part of the vocabulary and natural order of things.”
Fishman said the order also opened the door for giving “Gay 101” training to labor organizations and human resource personnel, which was used in their collective bargaining.
“The results, however, were a mixed bag,” Fishman said.
“There were perhaps 30 cases handled under the order during the Celeste administration,” said Fishman.
“The disappointment was that [Celeste] did not include state contractors,” said Fishman. “That would have had far reaching impact, but Celeste decided not to do it.”
Fishman explained that had contractors been included in the order, they would have needed a similar statement of their own in order to get state contracts.
“We would have gotten to the point where we are now with major employers a lot sooner had they been included,” Fishman said.
Strickland’s order does not include contractors, either.
Dagmar Braun Celeste, the former first lady, was influential in getting the first order.
Braun Celeste and the former governor divorced in 1995. She identifies as neither gay nor straight, rather as “philasexual,” which she says means, “I don’t sleep with anyone I don’t love.”
Braun Celeste said the first order “was the logical dot on the i of good organization of the gay and lesbian community,” especially in Columbus at that time.
“What got it started was that the gay community started to speak up for its own rights, and put money and resources into getting what it wanted,” said Braun Celeste, “and that process really started around 1978.”
Braun Celeste said the governor knew exactly the impact the order would have, and took the risk because he felt it was the right thing to do.
“The gay issue was not a plus, but the gay community was a plus,” Braun Celeste said.
“What Strickland has done is a little easier because he can say Dick [Celeste] and George [Voinovich] did it already,” said Braun Celeste. “On the other hand, he has a more virulent and organized right wing constituency out there.”
Still, according to Braun Celeste, signing the order led to Celeste getting accused of being a child molester by his Republican opponent James Rhodes in the 1986 campaign.
“They were looking for gay lovers in all our lives,” Braun Celeste said.
The original order and the new one 24 years later have similar roots.
Rhonda Rivera, a lesbian attorney in Columbus at the time, was instrumental raising money and support for Celeste among gays and lesbians. She is now retired in New Mexico.
In her practice, Rivera was seeing a lot of employment discrimination that she could do little about, and with others, including her partner Pamela Hyde, organized around the possibility of the order and building the relationships needed to get it done.
Hyde was appointed to head Celeste’s Department of Human Services in 1990, though it was not widely known she is a lesbian.
In 2002, New Mexico governor Bill Richardson appointed Hyde to the same position there.
“Once the order was written, there was very little negotiation,” said Rivera, who added that Celeste’s delay between taking office and signing the order was because he had other things to do first.
“He wasn’t going to go on the line until his first priorities were done,” Rivera said.