Lambda Legal Urges Arizona Supreme Court To Uphold Governor's Executive Order Barring Anti-Gay Discrimination Against State Employees

(Phoenix, October 17, 2003) - In an important case for lesbian, gay and bisexual Arizona state employees, Lambda Legal today urged the state Supreme Court to uphold Gov. Janet Napolitano’s executive order that prohibits discrimination based on sexual orientation against state employees.

Napolitano issued the executive order in June, adding Arizona to nearly two-dozen other states with similar policies barring anti-gay discrimination against state employees. Six state legislators have asked the state Supreme Court to overturn Napolitano’s order, claiming the governor lacks the authority to set such a policy. The state Supreme Court will decide whether to hear the case later this month.

“We don’t believe the Supreme Court should even hear this case because the governor so clearly has the authority to set policy for state employees she oversees. But as the justices weigh this, we want them to have all of the information in front of them, which is why we submitted an extensive brief today,” said Jon Davidson, Senior Counsel for Lambda Legal in its Western Regional Office. “It is absolutely clear that Gov. Napolitano acted as a responsible chief executive well within her authority under Arizona’s Constitution.”

Arizona governors have used their authority to issue executive orders for decades to enhance equal employment opportunities within their administrations on a wide variety of bases, Lambda Legal argued today in its brief, which was also signed by the Arizona Human Rights Fund. In addition, the brief outlines decades of executive orders at state and federal levels that protect public employees from discrimination. The governors of Alaska, Colorado, Delaware, Kentucky, Maryland, Pennsylvania and Washington have issued executive orders banning anti-gay discrimination against state employees over the last two decades, and a similar federal executive order has been in place since 1998. Dating back to the 1940s, executive orders have protected public employees from discrimination based on race, sex and other factors.

“Gov. Napolitano joined several other governors who have issued similar orders prohibiting discrimination and harassment of state employees,” said Kathie Gummere, Director of Public Affairs at the Arizona Human Rights Fund. “Challenging the governor over the exercise of her duties as head of the administrative branch and in protecting valuable state employees is a frivolous waste of limited state resources.”

The groups also said in today’s brief that Napolitano’s executive order is a smart business move and a wise risk-management measure. Explicitly prohibiting anti-gay discrimination helps protect the state from liability in employment litigation, and it also creates a more productive and stable workforce, the brief argues.

“This is good business,” Davidson said. “Every governor functions like a corporation’s CEO when it comes to state employees. Gov. Napolitano has taken a step that’s in line with what the best and brightest employers in Arizona and the nation are seeing as a smart way to manage risk while increasing worker productivity and retention.”

Lambda Legal cites dozens of respected studies over the last 20 years that show the widespread existence and harms of discrimination against lesbian and gay employees - and the impact those harms have on employees’ ability to focus on their work and stay in their jobs for long periods of time.

The states that explicitly prohibit discrimination based on sexual orientation among state employees include: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.

The case is Biggs v. Napolitano. Lambda Legal’s cooperating attorneys on the case are Laurie Hasencamp and Lawrence Rosenfeld and Michael Lungaretti of Greenberg Traurig LLP, the largest national or international law firm with offices in Arizona.

Contact: Eric Ferrero, 212/809-8585 x 227