The Obama Administration is expected to issue the long sought-after executive order that would provide job protections for LGBT employees who work for companies with federal contracts, according to a White House spokesperson.
The news comes as Congress appears ready to adjourn without the House taking up the Employment Non-Discrimination Act passed by the Senate last year. President Obama has repeatedly said through spokespeople that he prefers Congress pass ENDA to provide job discrimination protections for all LGBT Americans, rather than sign an executive order to protect employees under federal contracts. However, some of those companies—such as the highly offensive Exxon Mobil—do not have company non-discrimination policies on the books. Additionally, under the executive order, LGBT employees in companies that operate in the 29 states with no protection based on sexual orientation or the 32 states where firing a transgender employee is legally permitted would now be protected.
A White House official gave Frontiers the background:
Following up on his pledge for this to be a year of action to expand opportunity for all Americans, the President has directed his staff to prepare for his signature an Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity. The action would build upon existing protections, which generally prohibit federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. This is consistent with the President’s views that all Americans, LGBT or not, should be treated with dignity and respect.
The executive order comes at a time when ENDA has been roundly criticized for allowing religious exemptions beyond those provided in the 1964 Civil Rights Act, upon which the legislation was modeled.
Meanwhile, reaction has been pouring in. Rep. Adam Schiff (D-CA), a vice chair of the Congressional LGBT Equality Caucus and an original ENDA co-sponsor (ENDA currently has 205 bipartisan cosponsors in the House) applauded the announcement. Last March, Schiff joined 195 House and Senate colleagues who sent a letter to President Obama urging him to sign an executive order.
“The President’s actions today are important, and a welcome first step while we wait for the Republican leadership to bring up the Employment Non-Discrimination Act—which passed with strong bipartisan support in the Senate – for a vote in the House,” Schiff said. “With the House leadership thus far preventing a vote, it was time to use every avenue available to fight discrimination against LGBT Americans. Nevertheless, this does not free Congress from the responsibility to pass ENDA and protect all workers from discrimination and we continue to call for such action.”
Tico Almeida, who founded Freedom to Work in order to press for LGBT employment protections and who has been pressing the administration hard for an executive order, says he is happy with the development:
“Freedom to Work applauds President Obama for fulfilling his campaign promise to bring LGBT workplace protections to the employees of the companies that profit from federal contracts. This executive order is a tremendous step forward in the campaign to give LGBT Americans a fair shot to build a successful career being judged on their talent and hard work, nothing more and nothing less.”
The most immediate impact of this news should be felt at ExxonMobil’s corporate headquarters in Dallas, where the Exxon executives who have fought against LGBT protections for years will finally have to reconsider their retrograde position if they want to continue profiting from hundreds of millions of dollars in taxpayer-funded contracts. We predict Exxon will finally cave to pressure.”
The Williams Institute has been keeping track of the economic impact of not having ENDA protections and recently produced a study by Legal Fellow Christy Mallory providing evidence that a federal executive order “could protect millions of workers while not overburdening federal contractors or the U.S. government.”
The Williams Institute notes that the executive order will protect 14 million more workers. (See an Infographic here.) Their research shows:
• As of May 2014, 86% of the top 50 federal contractors prohibited discrimination based on sexual orientation, and 61% prohibited discrimination based on gender identity.
• All but two of the top 50 Fortune 500 companies prohibited discrimination based on sexual orientation (96%) as of May 2014, and 70% prohibited discrimination based on gender identity.
• Local policies that require city and county contractors to prohibit sexual orientation and gender identity discrimination do not burden governments or businesses.
• Combined, the top 50 contractors represent 47.7% of all contracting dollars awarded by the federal government - over $218 billion in spending.
“The executive order will help reduce the number of American workers who can be harassed or fired based on their actual or perceived sexual orientation and gender identity,” said Williams Institute Executive Director Brad Sears. “Williams Institute research has documented pervasive and persistent patterns of workplace discrimination in all fifty states, however, our analysis indicates that state and local nondiscrimination laws protect only a portion of the American workforce.”
“Today, discrimination against lesbian, gay, bisexual and transgender people is disturbingly common. A 2013 survey found that 21 percent of LGBT people report having been treated unfairly by an employer,” said Williams Distinguished Scholar, Lee Badgett. “Further, almost half of transgender people in a recent survey had experienced discrimination in hiring, promotion or job retention.”
The Human Rights Campaign, which ranks companies by how they handle LGBT issues, has also been pressing for both ENDA and an executive order. “By issuing an executive order prohibiting federal contractors from discriminating against LGBT people, the President will not only create fairer workplaces across the country, he will demonstrate to Congress that adopting federal employment protections for LGBT people is good policy and good for business. The White House statement today is promising, and we look forward to seeing the details of the executive order,” says HRC President Chad Griffin.
HRC also notes that:
Federal contractors employ more than 20 percent of the American workforce – 28 million workers -- and collect around $500 billion in federal contracts every year. According to the Williams Institute, an executive order would protect 11 million more American workers from discrimination based on sexual orientation and up to 16.5 million more workers based on gender identity....
For 12 years, HRC’s Corporate Equality Index has set key standards for equality in America’s workplaces. Corporations of all sizes, regions and industries have risen to the challenge and adopted policies and practices that treat LGBT workers fairly and equally. According to HRC’s research, 91 percent of Fortune 500 companies include sexual orientation in their workplace policies and 61 percent include gender identity. Also, nearly 450 major companies require their suppliers to adhere to their own LGBT-inclusive workplace policies, including more than half of the 100 largest corporations in America. These companies span 37 distinct industries and employ 13.7 million people.
Earlier today, HRC released new public opinion research that conclusively demonstrates strong public support for federal non-discrimination workplace protections for LGBT workers. A national survey of 1,200 registered voters conducted June 6-10, 2014 by TargetPoint Consulting found that 63 percent of those surveyed favor a federal law that protects gay and transgender people from employment discrimination while only 25 percent oppose it. Enthusiasm for this is especially strong among supporters: 42 percent strongly favor it, while only 16 percent strongly oppose.
HRC’s public opinion research on an executive order that would prohibit federal contractors from discriminating against LGBT workers had similar results. A 2011 poll of likely voters conducted for HRC by GQRR found that 73 percent favored such an order and support was strong regardless of age, race, education, political ideology, and a number of other demographics.
Under Executive Order 11246, first issued by President Johnson in 1965, companies contracting with the federal government for $10,000 or more in a single year are prohibited from discriminating against employees based on race, color, religion, or national origin. His order built on prohibitions on race discrimination in various federal contracts issued by prior presidents, as far back as Franklin Delano Roosevelt, that predated broader civil rights protections. In addition, since 1967, the executive order has also prohibited discrimination based on sex.
National Center for Transgender Equality Executive Director Mara Keisling celebrated the announcement but urged continued pressure on Congress to pass ENDA.
"This Executive Order will be a very important piece of the comprehensive anti-discrimination protections our community has been working for and winning. Title VII sex discrimination protections have been helpful, passing state and local laws have been helpful, passing the Employment Non-Discrimination Act will be helpful, and, very soon, this Executive Order will be helpful. This has been a remarkable month of win after win, both culturally and politically, for transgender people."
Frontiers criticized Obama for not including ENDA in his 2014 State of the Union address to Congress, but the White House spokesperson suggested it has been part of a larger plan all along:
The President has declared 2014 a year of action – vowing to use the power of his pen and phone to take action on behalf of the American people to strengthen the economy and the middle class. His actions have been driven by the core American principle that if you work hard and play by the rules, you should have the opportunity to succeed, and that your ability to get ahead should be determined by your hard work, ambition, and goals – not by the circumstances of your birth, your sexual orientation or gender identity.
Today, millions of Americans in most states in the country go to work every day knowing they could lose their jobs simply because of who they are or who they love. No current federal law adequately protects lesbian, gay, bisexual, and transgender (LGBT) workers from employment discrimination. That’s why the President has long supported federal legislation to explicitly prohibit employers from discriminating on the basis of sexual orientation or gender identity. Last November, the Senate passed the Employment Non-Discrimination Act (ENDA) with strong bipartisan support. However, the House has failed to act on this important legislation.
Following on his pledge for this to be a year of action to expand opportunity for all Americans, the President has directed his staff to prepare for his signature an Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity. The action would build upon existing protections, which generally prohibit federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. This is consistent with the President’s views that all Americans, LGBT or not, should be treated with dignity and respect.
President Obama is proud of the accomplishments he and his Administration have made to advance and promote equality, justice, and dignity for all members of the LGBT community. From signing an inclusive Hate Crimes law to passing the Affordable Care Act, from reauthorizing the Violence Against Women Act with provisions to protect LGBT victims to ensuring equality in federal housing, we have taken many important steps forward. While work remains to ensure that all Americans, regardless of sexual orientation or gender identity, are equal under the law, we look forward to continuing to make progress in the months and years ahead.