An executive order to prohibit workplace discrimination against LGBT people is receiving renewed attention now that the makeup of Congress makes passage of the Employment Non-Discrimination Act highly unlikely for at least two years.
LGBT rights supporters are pressing President Obama to issue a directive requiring the federal government to contract only with companies that have non-discrimination policies based on sexual orientation and gender identity protecting their employees.
Richard Socarides, president of Equality Matters, said an executive order for LGBT workplace protections “ought to be something the president seriously considers doing.”
“It’s definitely an administrative device the president can use to help advance the cause of full equality, especially if the Congress is unwilling to take action,” Socarides said.
Even though some companies don’t contract with the federal government, Socarides said the directive would set an example for all U.S. businesses to comply with the new rules.
“Most people are going to want to do that — whether or not they contract with the government,” he said.
Fred Sainz, the Human Rights Campaign’s vice president of communications, noted his organization has been calling on Obama to make the change since the beginning of the administration as part of a broad portfolio of proposals.
“The recommendation to issue an executive order is part of HRC’s ‘Blueprint for Positive Change,’ which includes the various policy changes that we have asked of the federal government,” Sainz said.
As it was introduced in the 111th Congress, ENDA would bar job discrimination based on sexual orientation and gender identity in most situations in the public and private workforce.
An executive order on LGBT workplace discrimination could be a workable alternative now that Republicans have taken control of the House and cut into the Democratic majority in the Senate after the 2010 midterm elections, making passage of ENDA in Congress significantly more challenging, if not impossible.
Whether Obama would be willing to issue such an executive order remains to be seen. The president has called for passage of ENDA, but hasn’t voiced an opinion about an administrative action instituting workplace protections for LGBT people.
“The president continues to examine steps the federal government can take to help secure equal rights for LGBT Americans,” said White House spokesperson Shin Inouye. “While I can’t speak to this specific proposal, we’ve already taken steps such as extending benefits to the same-sex domestic partners of federal employees and ensuring equal access to HUD programs, and we hope to continue making progress.”
Nan Hunter, a lesbian law professor at Georgetown University, said a directive protecting LGBT people would be a “terrific idea” because history has shown executive orders for non-discrimination often precede changes in law.
“I think the pertinent piece in terms of the civil rights history is that the federal contractor requirements were put in place prior to the enactment of the statutes,” Hunter said.
In 1964, President Johnson issued an executive order prohibiting most federal contractors from discriminating on the basis of race, color, religion, sex or national origin — prior to the enactment of Title VII of the Civil Rights Act, which provides similar protections in statute. Johnson’s directive could be used as a model for a directive protecting LGBT people.
Hunter said she sees no legal impediment to Obama issuing a workplace non-discrimination order for LGBT people and noted the federal government has “long had the custom” of instituting requirements for contractors that the majority of businesses don’t satisfy.
“That kind of executive order exists with regard to race, sex, religion, other protected characteristics — there is no reason why it could not be issued with regard to sexual orientation and gender identity,” she said.
Still, Hunter acknowledged that Obama may face political challenges in issuing such an order — much like the difficulties Congress had in passing ENDA — if the directive includes protections for transgender people.
“I think that’s the political concern at both ends of Pennsylvania Avenue,” she said. “On the other hand, I think that it would be unfortunate — or it would be wrong, really — to have an executive order that covered only sexual orientation and not gender identity.”
An executive order prohibiting the federal government from doing business with companies that don’t have non-discrimination policies protecting LGBT people would have less reach than ENDA.
According to the Williams Institute, the federal government contracts with 91,367 companies. The percent of the U.S. workforce that these companies employ is unknown. However, the executive order that Johnson issued in 1964, which covered most federal contractors, protected only an estimated 22 percent of the civilian workforce.
Sainz disputed the notion that an administrative action for workplace protections could take the place of legislatively passing ENDA.
“It is not an ENDA,” Sainz said. “It would only apply to companies that have contracts with the federal government. We believe it to be an incredibly important step forward but would not replace a fully inclusive ENDA that would apply to all workplaces, whether they be a federal contractor or not.”
Socarides acknowledged legislation would be the preferred route to provide workplace protections to LGBT people, but said an executive order would have some reach in lieu of an act of Congress.
“It sometimes comes after congressional hearings and often, after legislative action, there’s some sense that there’s been some national consensus around it,” he said. “But absent the willingness of Congress to move on it, I don’t think it would be as effective, but it could get a lot of the job done.”