Executive orders have dominated the recent news cycle. Although presidential orders tend to receive the most publicity, especially as of late, governors across the country also wield this political tool. In fact, recent Virginia governors have used it often. Governor Robert F. McDonnell issued 75 executive orders during his administration; Governor Timothy M. Kaine, 120; and Governor Mark R. Warner, 117.
On January 5, 2017, Governor Terry McAuliffe signed Executive Order 61 banning Executive Branch contracts with organizations that discriminate based on sexual orientation or gender identity. All contracts with the Executive Branch must now include a clause prohibiting discrimination based on “race, sex, color, national origin, religion, sexual orientation, gender identity, age, political affiliation, disability, or veteran status.”* Contractors must also include the clause in subcontracts and vendor agreements.
In issuing this executive order, Governor McAuliffe went back to the very beginning of his administration. His first executive order prohibited discrimination against state employees or applicants. The new order extends these protections to private employees of government contractors. Governor McAuliffe cited the need for synergy with Federal procurement policy that already prohibits such discrimination, saying the order will “give uniformity to contractors that serve many government entities, resulting in economic benefits to Virginia taxpayers.”
The order also provides that any Executive Branch employee that discriminates in the provision of state services will be subject to disciplinary action.
The Virginia Information Technologies Agency and the Department of General Services will develop regulations and policies to implement the order. Possible penalties for violations of the order include cancelling contracts, and barring organizations from contracting with the Commonwealth.
Naturally, Executive Order 61 will affect the drafting of future contracts with executive agencies in Virginia. Both state and contractor counsel will need to be aware of the new requirements. The order also widens protections for employees outside the Commonwealth, as affected contractors with business in other states adopt this anti-discrimination policy throughout their organizations.
*Certain child placing agencies and contracts for less than $10,000 may be excluded.