March 30, 2012 | by Chris Johnson
More pressure on Obama to bar workplace discrimination

Supporters of an executive order barring discrimination against LGBT federal workers were buoyed this week by the results of a new poll showing that 73 percent of Americans support such a measure.

Brian Moulton, legal director for the Human Rights Campaign, talked about the polling unveiled earlier this week by his organization during a briefing for staffers Thursday on Capitol Hill, saying support for the order comes from a diverse array of demographic groups — including conservatives.

“Rarely do we have support from this range of groups of people,” Moulton said. “The lowest support, which was 60 percent of support for the executive order, was among self-identified conservatives.”

Support came from 61 percent of Republicans, 72 percent of people 65 and older, 80 percent among black Americans, 72 percent among Hispanics, 77 percent of Catholics and 64 percent of born-again Christians.

“I think the data both on the executive order specifically, but the long-standing public polling we’ve had on the issue of non-discrimination over the years, shows that this is something that very much the American people support, and I think that’s also reflected in the fact that we have such strong support in corporate America,” Moulton said.

Other data, Moulton said, reveals that most people think federal workplace non-discrimination protections for LGBT people already exist. According to the poll, 87 percent think it’s illegal to discriminate against LGBT people in the workplace — even though no such law exists.

The survey of 800 likely voters nationwide was conducted for HRC by Greenberg Quinlan Rosner Research from Nov. 9 to Nov. 13, 2011. Even though the poll was conducted in November, the findings were published just this week.

Moulton was among five LGBT rights supporters who spoke on the panel, which was staged by the LGBT Equality Caucus and geared toward encouraging President Obama to issue an executive order requiring companies doing business with the U.S. government to have non-discrimination policies inclusive of sexual orientation and gender identity.

Because the measure is similar in its goal to the Employment Non-Discrimination Act, the directive has sometimes been referred to as the “ENDA” executive order, although the order would be more limited in scope because it only affects federal contractors.

Multiple sources, speaking on condition of anonymity, have told the Blade the Labor and Justice Departments have cleared such a measure. The White House hasn’t said whether it will issue the executive order.

Reps. Lois Capps (left) and Frank Pallone speak before a panel of LGBT advocates (Blade photo by Michael Key)

Joining supporters during the briefing were Reps. Frank Pallone (D-N.J.) and Lois Capps (D-Calif.), who are circulating a letter among House Democrats calling for President Obama to issue the executive order.

Pallone said the executive order is needed to address the lack of workplace protections for LGBT workers.

The lawmaker said the ultimate goal is passage of ENDA, but the scenario is unlikely given the current leadership of the House.

“I think it’s fair to say it has probably no chance of passage whatsoever with the Republicans in control of the House,” Pallone said. “With the federal contractors, this is something we think we can do in the interim to set a precedent and help a lot of people, knowing full well that what we’d really like to see is ENDA.”

Capps said issuing the executive order would be in line with Obama’s decision to issue executive orders to facilitate job opportunities while most legislation remains deadlocked in a divided Congress.

“He’s calling it ‘We Can’t Wait,’” Capps said. “This is one more step he can take toward the agenda of clearly that’s something in the interest of the American public.”

Pallone and Capps are the initial signers of the letter they are circulating among colleagues — along with retiring Rep. Barney Frank (D-Mass.). They’ve set the deadline for signing the letter on Friday in anticipation of publication next week. An informed source told the Washington Blade the letter has attracted about 50 signatures as of Thursday.

Others on the panel presented different cases for why Obama should have no problem issuing the executive order and the extent to which it would facilitate non-discrimination in the workplace.

Tico Almeida, president of Freedom to Work, said companies that lack LGBT-inclusive non-discrimination policies can institute them easily and that most companies that haven’t done so have yet to make the change out of “laziness.”

“With President Obama’s order, I predict 100 percent compliance; I don’t think a single company is going to put at risk its livelihood in order to keep discriminating,” Almeida said.

Citing instances of workplace discrimination in which having the executive order already in place would be helpful, Almeida said the directive would allow the Obama administration to search actively for workplace discrimination without having to wait for individuals to file complaints.

“In a certain limited sense, the executive order is better than a civil rights act,” Almeida said. “Under the Civil Rights Act, an investigation can only start if the affected person files a complaint. Under the executive order, the Department of Labor can be proactive, go out and do investigations, find discrimination without the person filing — and that happens a lot.”

Almeida also articulated a sense of urgency in issuing the executive order, saying it would take at least six months for implementation of the policy. That process could be disrupted if a Republican defeats Obama in the upcoming election.

“There will after that be a process of no less than six months — six months is really optimistic — in which the Department of Labor will research and draft those rules implementing the executive order, and those rules will include all the minutiae with a host of different issues that we often hear as excuses not to do ENDA,” Almeida said.

The process involves a 90-day comment period where concerned parties — such as businesses and LGBT groups — can weigh in, followed by revisions based on the comments and the final rule being published in the Federal Register, Almeida said.

Deborah Vagins, American Civil Liberties Union’s senior legislative counsel for civil rights, talked about the history of other non-discrimination orders issued by earlier presidents — noting that President Franklin Roosevelt issued the first such directive based on race, creed, color or national origin for defense contractors.

“In 1941, some of our earlier civil rights leaders were preparing for a march on Washington to integrate the armed forces,” Vagins said. “Unfortunately, while full integration of the armed forces was not achieved at that time, during meetings between the administration and leaders of the march, Roosevelt agreed to sign this landmark EO prohibiting discrimination in federal defense contracting.”

The directive has been expanded by later presidents — most recently President Lyndon Johnson — to include all federal contractors and more categories of workers.

Nan Hunter, a lesbian law professor at Georgetown University and legal scholarship director at the Williams Institute of the University of California, Los Angles, said the authority for Obama to issue the executive order is sound under the Federal Property & Administrative Services Act, or the Procurement Act.

“There has never been a court decision that has struck down any of the anti-discrimination provisions in a federal executive order on the grounds that they did not advance the economy and efficiency of government operations,” Hunter said.

Jeff Krehely of the Center for American Progress (Blade photo by Michael Key)

Jeff Krehely, vice president for LGBT programs at the Center for American Progress, presented findings from the institute published in November on the impact that ENDA would have on small businesses.

According to the findings, most small businesses already have non-discrimination protections. Seven out of 10 small businesses already prohibit discrimination against gay employees, and six out of 10 prohibit discrimination against transgender employees.

“It’s really a good news story out of the small business community because it shows that they are of a fair mindset when it comes to workplace equality,” Krehely said. “They recognize the fact that in today’s economy and today’s world the more inclusive and open you are, the better it is for your business, and this really translates into better recruitment and retention practices, less turnover — all the things that can disrupt a business of any size really.”

For small business that didn’t have the protections, Krehely said the response was that these companies didn’t think to institute them or didn’t think they had LGBT employees.

 

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

1 Comment
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