Adding a sexual orientation clause to the University's non-discrimination policy would fuel lawsuits against the school, administrators contend. But Penn State may be required by the governor to include the policy because it has contracts with the Commonwealth.

The possibility of adding a sexual orientation clause to the University's non-discrimination policy has been discussed during the past few years by administrators but no action has been taken due to the advice of legal counsel, said Billie Willits, interim affirmative action officer.

Legal Counsel for the University Wendell Courtney would not comment about any advice given to the University in connection with the non-discrimination policy because advice given by attorneys is confidential.

Willits said legal counsel has advised the University that such a clause could lead to possible law suits by dissatisfied employees and students, since sexual orientation is not covered by state legislation.

But the purpose of adding the clause is to insure that students and employees have the possibility of legal recourse in cases of discrimination, said Anthony D'Augelli, associate professor of human development.

The school's current policy on affirmative action protects students and employees against discrimination based on race, religion, sex, age, handicap or status as a disabled or Vietnam veteran. But it does not protect against discrimination based on a student or employee's sexual orientation.

The University's present non-discrimination policy protects those groups specified under the Pennsylvania Human Relations Act, Title Seven of the Civil Rights Act of 1964 and other specific federal laws, Courtney said.

Those groups currently included in the University's affirmative action statement are people with a history of needing government protection against discrimination in the job market, said Terrell Jones, special assistant to the vice provost for underrepresented groups.

Gay men and lesbians should have that added protection, but a policy including sexual orientation is currently not defendable under state and federal law, Jones said.

However, the University may be required to add a sexual orientation clause to its non-discrimination policy under a 1988 executive order from Gov. Robert P. Casey, according to documents.

Under executive order 1988-1 from Gov. Casey all agencies "under the jurisdiction of the governor" must have a non-discrimination policy which includes protection against discrimination on the basis of sexual orientation, along with several other categories already listed in the University's present statement, said Richard James, director of the Pennsylvania Bureau of Affirmative Action/Contract Compliance.

While the executive order does not apply to state-related universities, such as Penn State, that receive funding from the legislature, it would affect schools which receive outside contracts from any agency under the jurisdiction of the governor, James said.

State Inspector General Peter Smith said any university that has contracts with the state must comply with all executive orders regarding employment.

The University currently has 10 contracts with the Pennsylvania Department of Education for a total of nearly $500,000, said Vince Tokersky, contract officer for the department.

The University's biotechnology department also has at least one outside grant with the state through the Department of Commerce, said Jean Brenchley, director of microbiology.

While universities are not usually under the jurisdiction of executive orders, all contracts made by state departments must comply with the executive order, said Pam Disalvo, press secretary for the Pennsylvania Department of General Services.

When a contract is made between the state and an outside agency, all aspects of that agency must follow the executive order's affirmative action guidelines, DiSalvo said.

Courtney would not comment about whether the University is under the authority of specific executive orders.

If an agency does not comply with the executive order, it can lose present contracts with state agencies, be barred from any future contracts or referred to the attorney general for criminal investigation, according to the order.

Smith said his office has never received any complaints against the University regarding the governor's affirmative action policy.

Willits said adding a sexual orientation clause to the University's non-discrimination policy does not mean any action can be taken under it legally, since sexual orientation is not included in federal or state affirmative action laws.

"It's not fair to let people think they are protected when they're not," Willits said.

But Brian McKernan, a member of the Lesbian and Gay Student Alliance, said "The University reserves the right to discriminate against students in admitting them to the University and hiring faculty and staff."

Under the student code of conduct, harassment based on sexual orientation is defined as intolerance and as such can receive more severe disciplinary action than other types of harassment. However, this policy cannot protect anyone from being fired, passed over for promotion or being denied housing for their sexual orientation, said D'Augelli, also an LGSA adviser.

"There is clearly a need for (the clause)," said D'Augelli, who added that he knows of incidents of discrimination at the University based on sexual orientation.

Jeff Kemp, LGSA member, said although he does not think the University would discriminate on the basis of sexual orientation, the present policy allows for that possibility and it should not.

Under the present policy, the University cannot take any disciplinary action against students or employees for discriminating on the basis of sexual orientation, Willits said.

If a sexual orientation discrimination complaint was filed with the Affirmative Action office it could not be filed as a formal complaint since it would not technically violate the University's non-discrimination policy, Willits said.

Such a complaint would be investigated on an informal basis and handled as an employee relations problem, she said.

Juanita Haddad, assistant affirmative action officer, said there have not been any formal complaints filed within the past four years regarding discrimination based on sexual preference. What inquiries there have been in regard to sexual orientation fall under harassment, Haddad said.

By adding the clause the University would be making a public stand against discrimination based on sexual orientation, Kemp said.

Willits said the University's recent advertising campaign makes it clear that discrimination based on sexual orientation is not acceptable.