Fulfilling a long-awaited action that LGBT advocates had pursued since the start of his administration, President Obama signed on Monday morning an executive order barring anti-LGBT discrimination among federal contractors and in the federal workforce.
Seated before nine LGBT advocates — some of whom had experienced anti-LGBT discrimination on the job — Obama signed the directive in the East Room of the White House at 10:45 am, but not before speaking out against the continued lack of protections against LGBT workplace discrimination throughout the country.
“It doesn’t make any sense, but today in America, millions of our federal citizens wake up and go to work with the awareness that they could lose their job, not because of what they do and fail to do, but simply because of who they are — lesbian, gay, bisexual, transgender — and that’s wrong,” Obama said. “We’re here to do what we can to make it right, to bend that arc justice just a little bit in the other direction.”
The effects of the executive order are two-fold: It prohibits anti-LGBT discrimination among companies that do $10,000 a year or more in business with the U.S. government in addition to barring discrimination against federal workers who are transgender.
Obama amended Executive Order 11246 — which prohibits federal contractors from engaging in discrimination based on race, color, religion, sex, or national origin — to prohibit these companies from engaging in anti-LGBT bias in employment based on sexual orientation and gender identity.
“America’s federal contracts should not subsidize discrimination against the American people,” Obama said.
Additionally, Obama amended Executive Order 11478 — which prohibits discrimination in the federal civilian workplace — to bar discrimination based on gender identity. In 1998, President Clinton amended the directive to prohibit discrimination against employees of the U.S. government based on sexual orientation.
The action from Obama barring federal contractors from engaging anti-LGBT bias was sought by LGBT advocates for years. LGBT advocates had called such an executive order a 2008 campaign promise from Obama, and media had questioned the White House about why it hadn’t been signed since 2011.
“Many of you have worked for a long time to see this day come,” Obama said. “You organized, you spoke up, you signed petitions, you sent letters — I know because I got a lot of them…Thanks to your passion and advocacy and the irrefutable rightness of your cause, our government — the government of the people by the people and for the people — will become just a little bit fairer.”
Tico Almeida, president of Freedom to Work, was among those who made the executive order a priority in his engagement with LGBT advocacy and was present at the ceremony when the directive was finally signed.
“It’s an honor to witness President Obama signing this LGBT executive order and to be here for such a watershed moment in our country’s march toward LGBT equality under the law,” Almeida said. “We’re celebrating the successful conclusion of a strong and sustained campaign by Freedom to Work and so many other LGBT advocates who kept reminding the White House about this delayed campaign promise, and we’re celebrating that President Obama has continued to secure his legacy as the greatest presidential champion for LGBT Americans.”
The nine individuals who joined Obama on stage were Virginia Gov. Terry McAuliffe (D), Deputy Secretary of Labor Chris Lu, Office of Federal Contract Compliance Programs Director Pat Shiu, Maryland pastor Rev. Delman Coates, Director of the Religious Action Center of Reform Judaism Rabbi David Saperstein as well as LGBT workplace equality advocates Kylar Broadus, Michael Carney, Anne Vonhof and Faith Cheltenham.
Among those present in the East Room during the signing ceremony, but not on stage, were lesbian Sen. Tammy Baldwin (D-Wis.) and Sen. Jeff Merkley (D-Ore.), who have led efforts to pass the Employment Non-Discrimination Act in the Senate, as well as Human Rights Campaign President Chad Griffin; the Center for American Progress’ Winnie Stachelberg; the National Gay & Lesbian Task Force’s Rea Carey; and gay lobbyist Steve Elmendorf.
Stachelberg was among a handful of LGBT advocates who met privately with Obama on Monday prior to the signing of the executive order. About a dozen people were part of this private group, Stachelberg said.
“Among those were those who joined the president on stage and a few of us who have worked on the EO for the past several years,” Stachelberg said. “Brad Sears, Chad Griffin and I were honored to be part of that group who had the chance to thank the president for his leadership and commitment as he had the opportunity to thank us for our advocacy.”
Now that Obama has signed the order, federal contractors are expected to include explicit protections in their equal employment opportunity policies for LGBT workers. According to the Williams Institute, the order will protect 34 million workers, or about 22 percent of the Americans workforce.
Chief among federal contractors without explicit LGBT workplace protections is oil-and-gas giant ExxonMobil, which has received more than $1 billion in federal contracts over the past 10 years. For the 17th time, shareholders in June rejected a resolution to amend the company’s policies with these protections.
Richard Keil, an ExxonMobil spokesperson, on Saturday told the Blade that company has “an across-the-board no tolerance policy for any form of discrimination,” but had no updates on whether the company would change its policy.
According to the White House, the part of the executive order barring anti-transgender discrimination in the federal workforce take effects immediately, but the component anticipate barring federal contractors from engaging in anti-LGBT discrimination should take effect “early next year” after regulations are written by the Labor Department.
The executive order, which is enforced by the Labor Department, governs federal contractors and federally-assisted construction contractors and subcontractors doing more than $10,000 in business with the federal government each year, but doesn’t impact the administration of federal grants.
Prior to the signing, faith leaders called on Obama to include an exemption for religiously affiliated organizations in the executive order so they could engage in anti-LGBT discrimination while still being able to receive federal contractors. After subsequent pushback from civil rights organizations, House Democrats and legal scholars who called for the exclusion of such language, Obama didn’t include in his directive any sweeping carve-out for religious organizations.
However, Obama left in Executive Order 11246 an amendment from President George W. Bush that allows religiously affiliated federal contractors to discriminate on the basis of religion by favoring workers of the same religion in hiring practices.
LGBT advocates hold differing views on whether religiously affiliated federal contractors could continue discriminate against LGBT workers under the pretext of religion, although the general agreement is that it would be unlikely.
Lanae Erickson Hatalsky, director of social policy and politics for the centrist known as the Third Way, said that language could enable a scenario where LGBT employees could be subject to discrimination from religously affiliated federal contractors, but it would be up for the courts to decide.
“Just as under Title VII, religious organizations will still be able to require their employees to abide by their religious tenets,” Erickson Hatalsky said. “That means they can’t fire someone for being gay, but they could argue they could apply a standard to all employees equally that says they cannot be engaged in premarital sex, or marry outside the requirements of the religion. The court would then have to determine whether they were applying that rule equally to all employees. They can’t be just using it as a pretext for firing gay people. But they can still prefer employees who follow their religious principles, as long as those principles are neutral with regard to sexual orientation and applied equally.”
Ian Thompson, legislative representative of the American Civil Liberties Union, said on the other hand religiously affiliated federal contractors won’t be able to discriminate against LGBT workers under this language, although his organization continues to argue the Bush language should be rescinded.
“In no way does that exemption provide a backdoor to undermine these new protections for LGBT people,” Thompson said. “The final sentence of the exemption clearly states that these contractors ‘are not exempted or excused from complying with the other requirements.’ As of Monday, those other requirements will include a prohibition on discrimination on the basis of sexual orientation and gender identity.”
For his part, Obama said prohibitions against LGBT workplace protections should extend further through passage of legislation that would prohibit LGBT discrimination among companies at large and wouldn’t just be limited to federal contractors or the federal government. A version of the bill has passed the Senate, but House Speaker John Boehner (R-Ohio) has refused to let the bill come up in his Republican-controlled chamber.
The White House continues to support ENDA, although many groups have withdrawn support from the bill because of an exemption that would allow religious organizations to continue to discriminate against LGBT workers in non-ministerial positions that is broader a similar exemption for other groups under existing civil rights law. Notably, Obama never mentioned ENDA by its name in his remarks.
“I’m going to do what I can, with the authority I have, to act,” Obama said. “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.”
Obama’s reference to legislation elicited a shout of “Amen!” from an audience member, to which Obama responded by saying, “Got the “amen” corner here. You don’t want to get me preaching, now.”
“We’ve got an obligation to make sure that the country we love remains a place where no matter who you are, or what you look like, or where you come from, or how you started out, or what your last name is, or who you love — no matter what, you can make it in this country,” Obama concluded. “That’s the story of America.”
CORRECTION: An initial version of this article misspelled the name of Richard Keil. The Blade regrets the error.