Are state employees protected against discrimination based on their sexual orientation? The answer is, it depends whom you ask.
A rule adopted in December by the State Personnel Commission that would have added sexual orientation to the list of protected categories (with race, gender and religious beliefs) was overturned a month later by a 4-2 vote of the legislature's Rules Review Commission. The RRC decided that the personnel commission lacked the statutory authority to do what it intended because the term "sexual orientation" isn't used in any state law.
Legislation to ban discrimination against gay, lesbian, bisexual and transgender people in state employment failed to pass either house of the General Assembly during the 2007 long session, making it ineligible to be considered this year.
Nonetheless, Equality North Carolina, the gay-rights lobbying organization, believes the personnel commission's actions last year did put in place an anti-discrimination "policy"—if not a rule—that should direct the practices of the state agencies that report to the governor's office, at least until a contrary rule or policy is enacted.
Ian Palmquist, ENC's executive director, said Monday the Office of State Personnel is "looking at the issue internally" to determine whether the commission's actions a year ago constituted such a policymaking step.
OSP spokeswoman Margaret Jordan confirmed that the subject is "under discussion" and said it may be answered within a week.
The agency, an arm of the executive branch of state government, proposed the anti-discrimination measure last June with Gov. Mike Easley's support, according to meeting minutes. On June 22, 2007, the commission approved an amendment to its existing Equal Employment Opportunity policy. For state agencies to have their EEO plans approved by the OSP, the commission decided, every plan should include protections against discrimination based on sexual orientation and political views.
The SPC thereafter initiated a rule-making procedure that ended with the RRC's rejection.
All of this occurred with virtually no public attention until April, when an online edition of the state's personnel manual was published, including the anti-discrimination language. The manual said state employees were protected under EEO policy against discrimination because of sexual orientation, defined as "actual or perceived heterosexuality, homosexuality, bisexuality [or] gender-related identity or expression."
ENC declared a limited victory.
"Although the proposed rule could not take effect, the policy was duly adopted by the [SPC] and they have not rescinded it," Palmquist said. "Therefore, the policy protecting LGBT state workers from discrimination remains in force."
The conservative N.C. Family Policy Council howled in protest, however. The council, which fought the rule, insisted the manual's language was a mistake, and its position seemed to prevail when the language was removed from the online manual.
Group President Bill Brooks called it "a clear case of a properly working system of checks and balances within government." The executive branch tried to exceed its authority by making rules to enforce a law that doesn't exist, he said. The Office of State Personnel's position last June was that it has the authority to standardize anti-discrimination policies for agencies under its purview with respect to federal EEO laws.
Some agencies already include LGBT protections, as do most of the campuses in the state university system, according to Nancy Astrike of the OSP. According to Palmquist, 15 of the 16 campuses—all but Elizabeth City State University—have such protections, as do several of the Council of State departments.
The latter include the lieutenant governor's office. Lt. Gov. Beverly Perdue, in answer to a question posed by the Indy during her primary campaign for governor, said her office has a formal policy "prohibiting discrimination on the basis of sexual orientation."
Perdue, now the Democratic gubernatorial nominee, said that as governor, "I would ensure that this policy is administered throughout state government."