Louisiana EO barring sexual orientation, gender identity discrimination in state contracts shot down

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By Joy Waltemath

By Pamela Wolf, J.D.

A state court in Louisiana has come down against Governor John Bel Edwards, ruling that he unconstitutionally side-stepped the state legislature, creating law, when he took action to protect state employees from sexual orientation and gender identity discrimination by issuing Executive Order No. JBE 2016-11, Louisiana Attorney General Jeff Landry’s office reported. The court concluded that the EO is unconstitutional and cannot be enforced.

Executive order. In April 2016, the Democratic governor signed the EO, which provided employment protections for state employees and employees of state contractors on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability, or age. The EO also barred discrimination in services provided by state agencies and recognized an exemption for churches and religious organizations.

Former Governors Edwin Edwards and Kathleen Blanco has issued similar orders, Edwards pointed out at the time. And there was, and still is, no state law protecting lesbian, gay, bisexual, or transgender Louisianans from employment discrimination. Governor Edwards rescinded former Governor Bobby Jindal’s executive order (BJ 16-8) extending provisions included in the “Marriage and Conscience Act” that had been rejected by the House Committee on Civil Law and Procedure during the prior year’s regular legislative session.

“The previous administration’s executive [order] I am rescinding was meant to serve a narrow political agenda,” Edwards said at the time. “It does nothing but divide our state and forced the business community, from Louisiana’s smallest businesses to large corporations, like IBM, to strongly oppose it. This executive order threatens Louisiana’s business growth, and it goes against everything we stand for—unity, acceptance, and opportunity for all.”

Landry versus Edwards. Attorney General Landry, however, moved against the governor’s action by rejecting state contracts that included the new antidiscrimination prohibition. The governor sued the attorney general, but a court determined that Edwards could not use the courts to prevent Landry from rejecting the contracts. Landry returned the favor by suing Edwards, asserting that the EO conflicted with existing law, violated the separation of powers doctrine, and created a protected category that did not exist under the state constitution, among other things.

AG wins. Trumpeting what he saw as his second win on December 14, Landry underscored that 19th Judicial District Court Judge Todd Hernandez had affirmed the constitutional independence of the Attorney General’s Office and noted that a governor cannot act outside the scope of his authority by creating law with the stroke of his pen. “I applaud Judge Hernandez for basing his ruling on the law, not politics,” Landry said in a statement. “My challenge has always been about upholding the checks and balances on executive authority as established in our State Constitution.”

About his loss, Governor Edwards said: “We are disappointed in the court’s ruling today. However, we fully intend to appeal this issue, which is how the parties knew that this matter would ultimately be resolved. In his ruling, the judge declared that Louisiana law recognizes the governor as the constitutionally superior officer to the attorney general, but did not agree that the executive order is within the authority of the governor to implement. With great respect for the role of the Louisiana legislature, we continue to believe that discrimination is not a Louisiana value and that we are best served as a state when employment decisions are based solely on an individual’s qualifications and job performance. We respect the trial court’s decision and will abide by it while we vigorously pursue an appeal.”

Source:: Employment Law Daily Newsfeed

      

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