White House Press Secretary Jay Carney said Thursday he believes passage of the Employment Non-Discrimination Act would make “redundant” an executive order barring LGBT discrimination among federal contractors — an assertion that advocates say is untrue as they continue to press for both legislation and the directive.
Carney made the remarks in response to a question from the Washington Blade on whether passage of ENDA — which has already passed the Senate, but remains pending in the House — would change the thinking of President Obama on the executive order, which he continues to withhold despite continued pressure from LGBT rights supporters.
“I think if the law passed — and I’m not a lawyer — and I haven’t read every sentence of the law, but I think if a law passed that broadly banned this kind of employment discrimination, it would make redundant an executive order,” Carney said.
Carney articulated his belief that an executive order would be “redundant” in the event ENDA became law after emphasizing the broad-based protections under the bill, which applies not just to federal contractors, but to many public and private employers.
“I think the employment non-discrimination legislation, the Employment Non-Discrimination Act, would broadly apply, and that’s one of the reasons why we support it,” Carney said. “Because it’s a broad solution to the problem, and it ought to be passed by Congress.”
When the Blade pointed out there are possible instances of LGBT discrimination that ENDA wouldn’t cover, but may be covered under the executive order, Carney called such potential acts of anti-LGBT job bias “hypothetical.”
“Well, that could be, hypothetically, but I think we’d like to see the legislation passed,” Carney said. “That would be a good thing.”
LGBT advocates disputed the notion that an executive order barring LGBT discrimination would be redundant if ENDA were law, saying both are necessary to enable greater legal protections for LGBT workers.
Fred Sainz, vice president of communications for the Human Rights Campaign, said his organization is directly at odds with Carney’s assertion and blasted the White House spokesperson for being “completely out of step.”
“We couldn’t disagree more,” Sainz said. “Even if ENDA passed tomorrow, we’d still want the EO. His assertion is completely out of step with over 60 years of social change strategy related to enduring legal protections for race and gender and more recently for hate crimes and non-discrimination protections on the basis of sexual orientation and gender identity. What he’s asserting is the equivalent of saying that if ENDA passed tomorrow, we wouldn’t need non-discrimination laws in the majority of states that still don’t have them. That’s absolutely not the case.”
Other categories for individuals — race, color, religion, sex or national origin — are protected under current law by Title VII of Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission, and by Executive Order 11246, which is enforced by the Labor Department’s Office of Federal Contract Compliance. Both were put in place under former President Lyndon Johnson.
Ian Thompson, legislative representative of the American Civil Liberties Union, said both ENDA and an executive order are needed to provide “parallel protections” for LGBT people enjoyed by other categories of workers.
“Race discrimination, for example, is prohibited under both Title VII of the 1964 Civil Rights Act and Executive Order 11246,” Thompson said. “It’s certainly our opinion and our view that the same should apply to LGBT workplace discrimination as well. Even if ENDA were to be passed and signed into law tomorrow, we would still advocate for and want the executive order, and absolutely, definitely do not see it as redundant.”
Rea Carey, executive director of the National Gay & Lesbian Task Force, also insisted that legislation and an executive order are necessary to provide full protections to LGBT workers.
“We need both,” Carey said. “We urge the president to use his power and act immediately with an executive order that protects millions of LGBT employees who work for federal contractors and we urge Congress to follow the lead of the Senate and pass ENDA. Rights delayed are rights denied.”
One difference between the executive order and ENDA would be the enforcement mechanism. If ENDA were law, anti-LGBT discrimination would be still be allowed by small businesses, or companies with fewer than 15 employees, as well as by religious organizations in a broader way than other groups because of ENDA’s religious exemption. But if an executive order were in place — and modeled after the existing executive order barring discrimination among other groups — companies exempt under ENDA could face penalties as long as they do $10,000 a year in business with the U.S. government.
According to Freedom to Work, under ENDA, a victim must first file a complaint with the EEOC before an investigation into anti-LGBT workplace discrimination can take place. But under the executive order, the Labor Department could proactively investigate a company for such discrimination — even if no complaint were filed. In fact, the Labor Department regularly conducts audits of federal contractors to determine if they’ve engaged in discrimination under the current directive.
Tico Almeida, president of Freedom to Work, took Carney to task, saying he’s incorrect and apparently unfamiliar with the Obama administration’s work against employment discrimination.
“When he calls the executive order ‘redundant,’ Mr. Carney is wrong on the law, and surprisingly, he’s even wrong on the facts about the Obama administration’s own successful record enforcing the existing executive order banning racial and sex discrimination at federal contractors,” Almeida said. “In order to have full equality under the law, LGBT Americans need both the statute and the executive order because they have distinct enforcement procedures, and more discrimination can be prevented when both policies work in tandem.”
Almeida added that Carney should consult with “dedicated public servants” at the Labor Department, which, among other victories, under Executive Order 11246 recently won a $2.2 million settlement with federal contractor Cargill in a set of hiring discrimination cases on behalf of nearly 3,000 African-American, Latino and female job applicants — even with a law barring this discrimination in place.
“LGBT Americans deserve these same workplace protections that the Obama Labor Department has been enforcing for other hardworking Americans,” Almeida said. “There’s no good reason to leave only the LGBT community out of the workplace protections that have been applied by the Labor Department to everyone else.”
Also during the briefing, Carney responded to an email from Democratic National Committee Treasurer Andrew Tobias in which he told LGBT donors on an off-the-record listserv the executive order should be signed and its absence is “frustrating and perplexing.”
“I think that there are lot of strongly held views on these matters,” Carney replied. “The president believes very strongly in employment non-discrimination. That’s why he has urged Congress to act on the ENDA legislation. We’ve seen some progress on that. It needs to be completed. Those who oppose it are standing in the way of history and they’ll look foolish in the future as future generations look back at that stance and recognize it for what it is. I just don’t have any updates for you on the EO that you mentioned.”