President Obama Signs Executive Order Banning LGBT Job Discrimination by Federal Contractors and Government
What the Executive Order Does:
This Executive Order amends two earlier executive orders: it amends Executive Order 11246, which prohibits discrimination by federal contractors to add sexual orientation and gender identity to the existing prohibitions of race, color, religion, national origin, age and sex discrimination. In addition, Executive Order 11478, which, as amended, bars discrimination against federal employees on the basis of race, color, religion, sex, sexual orientation, national origin, disability and age, is further amended to include gender identity. Notably absent from the Executive Order is an expanded religious exemption requested by some communities of faith, similar to the one included in ENDA. However, President Bush’s Executive Order 13279, which permits religiously affiliated federal contractors to favor individuals of a particular religion when making employment decisions remains in effect.
The new Executive Order states that the provision affecting federal employees will take effect immediately. The provision affecting federal contractors and subcontractors likely will be implemented by early 2015.
What Does This Mean for Employees:
In eighteen states, including California, Minnesota, Oregon and Washington, and in the District of Columbia, laws already exist to protect employees from discrimination based on sexual orientation and gender identity. Additionally, the White House’s Office of the Press Secretary notes that most of America’s major companies have already included LGBT protections within their non-discrimination policies: 91% of Fortune 500 companies prohibit discrimination based on sexual orientation and 61% prohibit discrimination based on gender identity. Among the 50 largest federal contractors, which represent nearly half of all federal contracting dollars, 86% prohibit discrimination based on sexual orientation and 61% prohibit discrimination based on gender identity.
However, there are still 29 states without express job protections based on sexual orientation, and 32 states lack bans on gender identity discrimination. There are an estimated 14 million employees of federal contractors who live in states without state law protections that will now be covered.
What About the Employment Non-Discrimination Act (ENDA):
President Obama has reaffirmed that there remains a need for ENDA. Although ENDA was passed by the Senate in November 2013, ENDA is unlikely to be taken up for a vote in the House anytime soon. In signing the Executive Order, President Obama stated “I’m going to do what I can, with the authority I have, to act. The rest of you, of course, need to keep putting pressure on Congress to pass federal legislation that resolves this problem once and for all.”
Authored by Ed Reeves and law clerk, Dexter Pearce.
Just in time for Pride Month, Representative Barney Frank (D-MA) introduced the Employment Non-Discrimination Act of 2009 (ENDA) earlier this week. If passed, ENDA would prohibit employment discrimination on the basis of sexual orientation or gender identity. It would also prohibit employers retaliation against employees who oppose such discrimination who participate in any investigation or proceeding under ENDA. To read more about ENDA, check out this article from the Human Rights Campaign.
ENDA would be the first federal law prohibiting sexual orientation and gender identity discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of, among other things, sex; it does not explicitly prohibit sexual orientation or gender identity discrimination). Several states already have similar protections in place, but ENDA would apply nationwide. ENDA would exempt from its coverage small businesses (those with less than 15 employees), religious organizations, and the armed forces.
This isn't ENDA's first trip through Congress; versions of the bill have been introduced in almost every Congress since 1994. However, with a strong Democratic majority in both houses of Congress, a Democratic President who is feeling the heat from the GLBTQ community, and the gay rights movement riding a wave of successes in state legislatures, 2009 may well be the year ENDA becomes law.
Employers whose policies and handbooks don't already address discrimination on the basis of sexual orientation or gender identity should consider a revision. For an example of how one company has addressed such discrimination, click here to read IBM's anti-discrimination policy. Click here for a state-by-state analysis of existing sexual orientation discrimination laws;
In case you missed it, Barack Obama will be the next President of the United States! And both houses of Congress will be controlled by Democratic majorities. Wondering what this will mean for labor and employment law? So are we! But we've gone a step further and made some educated guesses on what to watch out for.
- The Employee Free Choice Act (EFCA). The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. If passed, it is expected to drastically increase union organizing and unionization rates. The Stoel Rives World of Employment will be watching this one very closely.
- The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT). No, it's not an Aretha Franklin song. The "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize. Sock it to me!
- The Paycheck Fairness Act and the Equal Remedies Act. These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
- The Civil Rights Act of 2008. The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
- The Employment Non-Discrimination Act (ENDA). ENDA would amend Title VII to add sexual orientation as a protected class.
- The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
- Minimum wage. President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010.
- Family and Medical Leave Act (FMLA). President-elect Obama has also indicated his support for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50).