LGBT Workplace Protections: Obama Takes Decisive Action
Last Updated on June 26, 2017
At the end of July, President Obama made headlines by signing into law an executive order protecting the rights of gay and transgender federal contractors to be free from workplace discrimination. The order, which affects companies that employ an estimated 28 million workers (equivalent to one-fifth of the U.S. workforce), is a major milestone for LGBT workers and the Obama administration, which had been hesitant to issue anti-discrimination orders without the approval of Congress. Now, though, delays in the deadlocked House of Representatives and growing public support for same-sex marriage (along with the general trend of state and local governments enacting anti-discrimination laws) seem to have convinced the President: the time for federal protection has come. With the Employment Non-Discrimination Act (ENDA) stalled in Congress, an executive order applying to federal contractors may be a second-choice option, but it is, nonetheless, an effective means to protect the rights of certain LGBT workers. The order protects all federal contractors, including the estimated 400,000 to 600,000 who identify as gay, lesbian and/or transgender.
Isn’t Discrimination Already Illegal in the Workplace?
It is, depending on the basis for that discrimination. Before this executive order, federal law did not prohibit employers from discriminating against workers because of sexual orientation or gender identity. As of 2014, 29 states allow employers to fire someone or deny them a job or promotion because of their sexual identity. More states – 32 – allow companies to refuse to hire someone because of the applicant’s gender identity, but don’t permit employers to fire workers solely for that reason.
It’s worth noting that many private companies will be affected by this order, as most large corporations provide goods or services to one or more federal agencies, the military and other branches of the federal government. While an increasing number of businesses are upfront in promoting inclusive hiring practices, Exxon Mobil shareholders, for example, have more than once voted down resolutions requiring the company not to discriminate based on sexual identity. President Obama’s executive order will ensure that in all jobs involving companies that contract with the United States government, LGBT-based discrimination will no longer be tolerated. Indeed, companies will now need to demonstrate compliance with the executive order to receive government contracts and taxpayer dollars.
What Happens Now?
President Obama’s order is actually an amendment to a previous order issued by Lyndon B. Johnson. The move adds sexual orientation and gender identity to a list of protected categories for federal contractors. At the time of signing, Obama explained that:
"It doesn't make much sense, but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are -- lesbian, gay, bisexual, transgender. And that’s wrong."
Before the addition of sexual orientation and gender identity, the order – Executive Order 11246 – already prohibited discrimination “against any employee or applicant for employment because of race, color, religion, sex, or national origin.” The order applies to for-profit businesses dealing with the federal government, but opposition from religious organizations seems likely: one of the main criticisms of the order (and the Employment Non-Discrimination Act in general) is that it may infringe upon the religious freedoms of individuals or business that oppose LGBT lifestyles. In light of the recent Supreme Court ruling that Hobby Lobby, a for-profit organization, can assert religious rights in denying certain contraception to workers as part of its health insurance coverage, questions are already being asked about how federal contractors might get around the new order by claiming that treating LGBT workers as equals violates their religious convictions. It’s a complex problem, exacerbated by the intense passions on both sides.
Is The Executive Order a Permanent Change?
Theoretically, no – but practically, yes. An executive order can be repealed or changed by any incoming president, meaning President Obama’s successor could overturn the changes. Nationwide polls, though, suggest vast public support for the move – and as far back as 1996, ENDA failed to make it through the Senate by only one vote. It’s hard to imagine any new president removing anti-discrimination protections. At the time of the order’s singing, the White House stated that:
“At a critical time for our nation’s economy, we need all of our workers to be focused on making the most of their talent, skill, and ingenuity, rather than worrying about losing their job due to discrimination. The economy functions best when workers are matched to the jobs with the best fit, maximizing their productivity, increasing wages and helping the bottom line for businesses. Discrimination is not just wrong, it also can keep qualified workers from maximizing their potential to contribute to the strengthening of our economy. For decades, companies have found that benefits and inclusive, flexible, and supportive workplace policies make it easier and more cost effective to recruit, retain, and motivate employees. The same logic applies to extending these basic protections and policies to LGBT workers.”
Federal employees are already protected from discrimination by Executive Order 11478, first issued by President Nixon (preventing discrimination based on race, color, religion, sex, national origin, disability, and age) and amended by Executive Order 13087, issued by President Clinton, to include sexual orientation.
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