Subject:
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Consider amendments to the City's employment policy
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Presented By: City Attorney Brown
Recommendation and Review
This is a revision to the City's employment policy. In accordance with previous direction of Council, staff has met with and received feedback from members of the community, has contacted various other localities, and reviewed employment policies from a variety of businesses and Virginia localities. Based on that research, staff recommends several changes to the City's existing employment policy. These changes include the following general items.
Staff added language to affirmatively state that the City seeks a diverse and inclusive workforce. Other language was added to the policy to ensure that this goal is considered in hiring decisions.
Going forward, internal only job postings will not be used. All openings will be advertised to existing employees and to the general public. A manager or supervisor may apply to the Human Resources Director for a waiver of this requirement if there is a current employee already trained and qualified for the opening.
The policy revisions instruct the Human Resources Department to advertise job openings in a variety of ways to increase the diversity of applicants.
The City may continue to consider an existing employee's service and job performance during the hiring process. City employees and the general public will be notified of job openings at the same time. The City will also give preferential consideration to qualified City employees who have been laid off.
There is a legal issue related to the employment policy which should be brought to Council's attention. The policy list various classes of individuals protected from discrimination. These classes for the most part are found in various federal laws, the Virginia Human Rights Act, or other state laws. These classes include race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, or veteran status.
Several years ago the City's employment policy was amended to add sexual orientation and gender to the non-discrimination sections. The use of the term "gender" could be read to include gender identity. There are several Attorney General Opinions from the last twenty five years or so that opine that localities have no authority to add protected classes to their employment policies outside of the classes found in state and federal law. Sexual orientation and gender identity are not classes specifically protected by federal or state statute (although in July of last year President Obama signed an executive order protecting employees of the federal government and federal contractors from discrimination based on sexual orientation and gender identity). Attempts to add sexual orientation and/or gender identity to the Virginia Humans Rights Act as protected classes have repeatedly failed in the General Assembly. Virginia's current Attorney General has not issued an opinion on this issue.
In short, there is a viable argument that adding sexual orientation and gender identity to the City's employment policy's prohibition on discrimination is not authorized by state law. Despite this, many jurisdictions in Virginia have included these classes for protection under their employment policies. There is no legal penalty associated with adding classes to our employment without authorization.