Signaling his continued support for both workers rights and LGBT individuals, President Obama recently signed an executive order that protects federal government workers, as well as workers for federal contractors, from discrimination on the basis of sexual orientation and gender identity. While we await a federal law that protects all LGBT workers, this significant step towards equality comes at a time where leadership on this issue is sorely needed.
The Employment Non-Discrimination Act (ENDA) has stopped making progress through Congress, despite a bipartisan 64-32 Senate vote in November 2013. ENDA also lost support of five national LGBT rights groups over its religious exemption, which put pressure on Obama to take this important step. Citing this Congressional stall, President Obama used "what authority [he] has" to protect LGBT workers because he recognized the need for job protection, even during this climate of rapid expansion of LGBT civil rights. In workplaces across America, discrimination continues unabated until legal rights are protected and prosecuted. As President Obama observed in signing the Executive Order: "This is not speculative, this not a matter of political correctness. People lose their jobs."
Obama's Executive Order protects LGBT employees who work for federal contractors from discrimination based on sexual orientation or gender identity. This applies to the 24,000 companies designated as federal contractors whose 28 million workers make up a fifth of the country's workforce. For federal employees, gender identity discrimination is now prohibited (these workers have been protected from discrimination based on sexual orientation since President Clinton's executive order in 1998). This affects roughly 200,000 federal employees who identify as LGBT (see The Williams Inst., How Many People Are Lesbian, Gay, Bisexual, and Transgender? 1 (2011), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-How-Many-People-LGBT-Apr-2011.pdf.)
President Obama's Order amends President Johnson's Executive Order 11246 of 1965, to add sexual orientation and gender identity to the list of protected categories covering federal contractors. That Order was later amended in 2002 by President George W. Bush to allow religiously affiliated contractors to favor individuals of a particular religion. While this exemption remains in place, President Obama refused a broader exemption urged by religious organizations to exempt them from the Order completely, a significant decision in light of the Supreme Court's recent Hobby Lobby decision that allowed some businesses to opt out, for religious reasons, of the federal health care law's requirement that contraception coverage be provided to workers at no extra charge.
And while this executive authority only reaches so far, it is not insignificant, both for those LGBT workers now protected thanks to Obama's Executive Order, but also in moving the country towards greater workplace fairness. As White House Officials recognized:
"Discrimination is not just wrong, it also can keep qualified workers from maximizing their potential to contribute to the strengthening of our economy. . . . 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."
Equal rights and anti-discrimination values aside, as President Obama declared: "In the United States, who you are and who you love shouldn't be a fireable offense."
For more information about how O&G attorneys fight to protect LGBT workers, see [http://www.outtengolden.com/practice-groups/lesbian-gay-bisexual-transgender-lgbt].