On June 16th, the White House announced that President Obama and his staff would create an executive order which would prohibit discrimination against LGBT workers in companies that do business with the federal government. The executive order has not yet been signed, but gay rights advocates and activists hope that it will cover new ground and fill discrimination gaps left in the employment sector which still lacks federal protection for LGBT workers in many areas.
Last year, congressional leaders attempted to change that with the passage of the Employment Non-Discrimination Act (ENDA), a law which would, for the first time, ban LGBT workplace discrimination at the federal level. Gay rights advocates hoped that ENDA would eradicate the rise in LGBT employment discrimination and harassment claims and enhance the movement’s status. ENDA passed in the Senate but has since stalled in the House where political pressure from the right shows no sign of permitting the law from moving forward.
Such events caused gay rights advocates and activists to put pressure on the White House to address the LGBT workplace discrimination issue further. White House officials have not yet announced when the executive order will be signed, but a few details about its content are known.
Effects of an Executive Order Banning LGBT Workplace Discrimination
The proposed executive order will require federal contractors to bar discrimination against LGBT workers. This means that all newly awarded federal contracts will contain provisions protecting LGBT workers from discrimination in the workplace and while on federally contracted jobs. The order places an impetus on companies who wish to contract with the federal government to abide by anti-discrimination rules governing the rights of all workers.
Federal workers already enjoy protection from discrimination based on sexual orientation through laws and orders enacted in years past. The Civil Service Reform Act of 1974, for instance, prohibits discrimination against federal employees based on any characteristic that does not adversely affect job performance.
Additionally, Executive Order 11478 makes clear that the federal government policy is to provide equal opportunity to all federal workers. It specifically notes sexual orientation as a basis of protection and states that it must be “an integral part of all personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the federal government, to the extent permitted by law.”
The nation’s leading law on employment rights, Title VII of the Civil Rights Act, however, does not specifically cover sexual orientation discrimination, though some cases have been filed under the statute’s prohibition of discrimination based on sex.
On two occasions, the Equal Employment Opportunity Commission (EEOC) has found that sexual orientation is protected under Title VII. It has held that transgender status discrimination is a form of sex discrimination as defined in Title VII, and that sex stereotyping based on lesbian, gay and bisexual status is a form of sex discrimination under the act.
However, the push for broader federal legislation specifically protecting LGBT workers from discrimination in the private employment sector has continued. Though many states offer such coverage, advocates cite the need for federal law to bridge gaps between state and federal law and to add an added layer of protection in states where no law protecting LGBT workers exist.
LGBT Worker Discrimination Protection in the States
In California, anti-discrimination laws prevent LGBT workers from being discriminated against in all companies except those with fewer than 5 workers. The language of the Fair Employment and Housing Act (FEHA) prohibits discrimination in the workplace based on sexual orientation and gender identity, providing an entirely separate protected category for LGBT workers.
Not only are LGBT workers protected based on actual sexual orientation and gender identity in California, they are also protected under a more far reaching rule. California law protects LGBT workers from discrimination based on even the perceived notion of sexual orientation and gender identity as well. These protections were added in 2004, when the FEHA was amended to place LGBT workers under the hedge of protection offered by state anti-discrimination employment laws.
California is one of 21 states that prohibit discrimination based on sexual orientation. Eighteen other states also explicitly prohibit discrimination based on transgender status. As for the remaining states, there is little or no specific protection from discrimination for LGBT workers. This leaves 11 million workers without laws in place at either the federal or state level for protection. Moreover, Pew Research reports that discrimination claims have increased 23 percent among LGBT workers.
What the Executive Order Could Mean to You
For current workers living in a state without laws in place for protection against LGBT discrimination, the executive order could mean that even more discrimination complaints will be addressed. The executive order may also signal behavior changes among federally contracted companies with lax discrimination policies. This may be especially true if the order contains penalties for non-compliance, such as contract revocations or bans against future contracting.
Political Backlash Concerning the Executive Order
Much could be said on the political backlash surrounding the executive order particularly regarding the atmosphere of adversity between the White House and congressional leaders. However, the White House Administration seems to be making it clear that it is willing to press forward with anti-discrimination measures using available means, even while progress of proposed federal legislation remains delayed. This is good news for gay rights activists and advocates who have been pushing for recent changes regarding LGBT rights to improve workplace conditions as well.