April 4, 2014 at 5:24 pm EDT | by Chris Johnson
White House not backing down in new ENDA flap
Josh Earnest, White House, Barack Obama Administration, press, gay news, Washington Blade, back down

White House Principal Deputy Press Secretary Josh Earnest wouldn’t back down from comments that an executive order would be redundant with an executive order in place. (Washington Blade photo by Michael Key)

The White House wouldn’t back down Friday from controversial comments that an executive order protecting LGBT federal workers would be “redundant” if the Employment Non-Discrimination Act is signed into law — despite criticism from LGBT rights supporters.

In response to a question from the Washington Blade, White House Principal Deputy Press Secretary Josh Earnest declined to say whether the White House now sees value in having both the executive order and ENDA in place, following the criticism. Instead, he talked about President Obama’s support for the legislation.

“The fact of the matter is our position on legislation that would codify into the law that individuals can’t be discriminated against at work just because of who they love — we strongly support that legislation,” Earnest said. “We urge Congress to pass that legislation, and that is what our position is.”

In response to a follow-up question about whether the White House believes Executive Order 11246, which prohibits federal contractors from discriminating on the basis of race, color, religion, gender or national origin, is also redundant under existing civil rights law, Earnest said he didn’t know.

“I’m not familiar with that specific executive order,” Earnest said. “We can certainly look into it for you. But in terms of the thrust of your question, the president’s unwavering support for ENDA legislation has not changed.”

Earnest’s boss Jay Carney found himself in hot water Thursday when, under questioning from the Blade, he said that an executive order would be redundant under ENDA. Carney prefaced his response by saying he isn’t a lawyer and hasn’t read every word of ENDA.

LGBT rights supporters — ranging from the Human Rights Campaign, the National Gay & Lesbian Task Force and Freedom to Work — pointed out that other categories of workers are protected under both Executive Order 11246 and Title VII of the Civil Rights Act of 1964, the law prohibiting job discrimination on the basis race, color, religion, sex and national origin and LGBT workers deserve similar protections.

Additionally. the enforcement mechanisms would be different because ENDA would be enforced by the U.S. Equal Employment Opportunity Commission, but the executive order would be enforced by the Labor Department’s Office of Federal Contract Compliance. Although small businesses and religious organizations would be exempt under ENDA, they could face penalties for discriminating against LGBT workers with the executive order in place if they do business with the federal government.

Shin Inouye, a White House spokesperson, provided a response similar to Earnest’s when asked if the White House now believes that an executive order is “redundant” with ENDA in place, saying, “The president continues to urge Congress to pass ENDA so that he can sign it into law.”

In response to Earnest’s latest comments, LGBT advocates reiterated their position that having both an executive order and ENDA on the books is necessary to provide full and equal non-discrimination protections for LGBT workers.

Ian Thompson, legislative representative for the American Civil Liberties Union, took the White House to task for asserting the executive order would be “redundant” with ENDA and for dodging on whether the same is true for Executive Order 11246 and Title VII.

“This should not be so complicated for the White House,” Thompson said. “Both Title VII and EO 11246 have provided workers with vital protections against discrimination for a half century. No one would credibly argue that Title VII has made EO 11246, and the Office of Federal Contract Compliance Programs (OFCCP) within the Department of Labor, ‘redundant.’ Rather than continuing to punt the ball back to Congress, it is time for President Obama to deliver on a promise he made when he was running for office.”

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

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