Gov. Hobbs issues anti-discrimination order for state agencies on first day of term

PHOENIX — Newly sworn-in Gov. Katie Hobbs did something on her first day in office on Tuesday that hasn’t been done since the last time Arizona had a Democratic governor: shield more Arizonans from discrimination — at least in state government.

But a provision extending its reach to entities that contract with the state could end up being challenged as illegal discrimination against faith-based organizations.

In a new executive order, Hobbs directed state agencies under her control to eliminate all barriers that “artificially restrict’’ employment actions that are “not directly related to the performance of the job.’’ And what that means, she said, is adopting anti-discrimination policies that go beyond what already is required under state and federal laws that cover not just things like race, sex and religion but also pregnancy and veteran status.

Now the list is expanded to include other traits that cannot be considered in hiring, firing or pay, ranging from gender identity and marital status to culture, creed, social origin and even political affiliation.

Hobbs’ expanded list also includes sexual orientation.

That, however, appears to have been covered in a 2003 executive order issued by Janet Napolitano. And it remains in effect as neither Jan Brewer nor Doug Ducey, the Republican governors that followed, used their powers to rescind it.

But gubernatorial press aide Murphy Hebert said there were potential loopholes in that.

“The order from 2003 arguably allowed the state to consider sexual orientation in hiring so long as it wasn’t the only reason for a hiring decision,’’ she said. “The new executive order clarifies that discrimination based on sexual orientation is prohibited in all state hiring decisions.’’

And the new governor went somewhere that Napolitano avoided: protecting those whose gender identity does not match the sex they were assigned at birth.

Hebert said the decision to issue an executive order expanding protections for state employees and those who work for companies that contract with the state was not based on any particular existing problems with discrimination.

“Gov. Hobbs has been all over the state and she’s been hearing from communities who say that they want a state that reflects the values and a state where they feel seen and safe,’’ she said. “This executive order is one step she’s taking to ensure that everyone in Arizona knows that she is the governor for everyone and that these communities can and will be safe.’’

The order also does something new: It requires the same nondiscrimination language and provisions must be inserted into new state contracts. But Cathi Herrod, president of the Center for Arizona Policy, said that provision may not be enforceable.

“The Hobbs executive order appears to violate the constitutional rights of faith-based agencies,’’ she said. Herrod specifically pointed to SB 1399, approved last year and signed by Ducey, which specifically prohibits discrimination by the state in dealing with faith-based adoption and foster-care agencies with whom the state now contracts.

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“That law should take precedence over any executive order,’’ Herrod said. And she said what Hobbs is attempting to do could undermine efforts to ensure that children are placed.

“The question is, does the state want to continue to have faith-based agencies providing such critical foster care and adoption services?’’ she said. “I think we do.’’

But Sarah Warbelow, legal counsel for the Human Rights Coalition, said Herrod is only half right.

She acknowledged that SB 1399, approved by lawmakers over objections of her organization, does allow organizations to refuse to place foster and adoptive children into homes where the prospective parents have beliefs with which they do not agree. That can include not just a religious preference but also whether the parents are gay.

“Catholic Social Services can say, ‘We will keep a child in congregate care rather than place them in a home of a same-sex couple who is otherwise qualified to be an adoptive parent,’ “ Warbelow said. And state statute, she said, trumps the governor’s executive order.

Warbelow argues, however, that what Hobbs is doing covers the other things that an adoption or foster care agency — or, for that matter, any organization that has a contract with the state — can and cannot do regarding its own employees.

“For example, if the YMCA wanted to contract with the state to broaden summer camps, that new executive order doesn’t say anything about discriminating against the kids who go to those camps,’’ Warbelow said.

“It does say when you’re hiring those camp counselors, you can’t discriminate on the basis of race or sex, religion, sexual orientation or gender identity,’’ she said, at least if you want to contract with the state.

Herrod, however, doesn’t see it that way.

“That’s the intent of SB 1399,’’ she said.

“You can’t discriminate and not award those contracts on that basis,’’ Herrod said. “Because if they didn’t award the contract because of the religious entity’s beliefs, then they’re violating their constitutional and statutory rights.’’