By Allen Palmeri
JEFFERSON CITY—Gov. Jay Nixon signed an executive order July 9 that prohibits employment discrimination based on sexual orientation in the executive branch of state government.
The order, which could be rescinded by a different governor anytime in the future, impacts tens of thousands of state employees. It touts the state equal opportunity officer as someone who will help implement “workforce diversity programs” and assist each department in developing “a workforce diversity plan.” It also institutes a “workforce diversity council” which will “work to ensure that all employees of the state are educated on issues involving diversity.”
The decision was announced at the National Conference of the NAACP in Kansas City. Nixon’s office did not publicize it, and it appears the mainstream media in Missouri did not make it known, either, until an analysis piece by the Associated Press published July 25. The writer of the analysis piece pointed out that Nixon’s executive order simply added sexual orientation to the list of factors banning discrimination that includes race, color, religion, national origin, ancestry, sex and disability.
House Speaker Ron Richard, R-Joplin, said Nixon has “clearly overstepped his authority again” by muscling the phrase “sexual orientation” into the public debate in this manner.
“The Legislature has established a statutory non-discrimination policy for the state and we believe if any change is made, it should be through debate by the General Assembly with the opportunity for public input,” Richard said.
“In addition, at a time in the state’s history when Gov. Nixon is calling us into a special session because of a need for pension reform and reducing future state expenditures, he has opened the door for taxpayer dollars to pay for the additional liability of both state benefits and pensions.”
PROMO, Missouri’s statewide advocacy organization for the Lesbian, Gay, Bisexual and Transgender community, issued a news release celebrating Nixon’s action.
“I want to see to it that Missouri remains true to the principles of ensuring equal opportunity for all people, and this executive order fulfills a pledge I made to have a more inclusive and diverse state workforce,” Nixon said. “The State of Missouri will work to ensure that there will be no vestiges of discrimination, not only in employment practices but also in providing services and in operating our facilities.”
The governor’s press secretary, Scott Holste, on Aug. 31 provided a statement to The Pathway concerning the executive order.
“Gov. Nixon believes that discrimination has no place in the state workplace, or in the services or facilities the state of Missouri offers its citizens,” Holste said. “The ability of an applicant to do the job should be the basis upon which someone is hired or not hired by the state—not one of the categories spelled out in the executive order.”
Holste said Nixon “pretty much” was in favor of providing state employment services “without regard to” sexual orientation in accordance with Article VI of the executive order. This also applies to job training programs specified in Article XI, he said.
Holste said he needed more time to determine to whom the pledge (mentioned in the PROMO news release) was made. He said Federal Executive Order 13087 “prohibits discrimination based on sexual orientation within Executive Branch civilian employment.” That was signed on May 28, 1998, by President Bill Clinton.
Missouri Baptist Convention (MBC) Lobbyist Kerry Messer disagrees with the governor’s rationale.
“It sounds reasonable on the surface, but this executive order gives special recognition or special treatment to someone based on the way they have sex, or the way they claim they have sex,” Messer said. “That is perversion of policy.”
Gary McElyea, spokesman for Lt. Gov. Peter Kinder, a Republican from Cape Girardeau, called it “nothing more than a political statement” and said that state employees should not be afraid of it.
“Discrimination of any kind should not be tolerated in the work force, but this executive order goes beyond the extent of the law,” McElyea said.
“This creates a new standard for human resources personnel across the state. They will be told to enforce this executive order when really human resources personnel should be focused on the most important thing, which is that people are showing up and doing their job. It is not their place to protect a class that is not protected under state law or federal law. This is another overreaching of the hand of government.”
Rich AuBuchon, the lieutenant governor’s chief of staff and general counsel, emphasized that the executive order does not set forth punishments, which is problematic both for the governor and for those to whom his pledge has been made.
McElyea and AuBuchon confirmed that the five employees in the lieutenant governor’s office are not under the authority of the sexual orientation executive order. However, employees in 16 executive branch agencies could be impacted.
Richard noted that there is such a thing as separation of powers in government, and that Nixon, by this action, is disrespecting it.
The governor’s action was not listed on his website as of Aug. 31. There were two items listed for July 9 and one for July 12 but no mention of him signing the executive order on sexual orientation.
One potential remedy for Nixon’s action would be for another governor to repeal the executive order. McElyea, while guarding against speculation, did offer that “the lieutenant governor would not have put his name on an executive order that goes beyond the extent of the law like this executive order does.”