Defense Bill Raises ‘Blacklisting,’LGBT Bias Debates

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By Chris Opfer

Oct. 25 — A must-pass defense spending bill ( H.R. 4909, S. 2943) making its way through Congress faces a couple of big hurdles in the form of debates over sexual orientation discrimination protections and contractor disclosure requirements.

A group of 42 Democratic senators October 25 asked the chairmen and ranking members of House and Senate Armed Services committees to scrap a provision in the legislation they say would shield religion-affiliated contractors from a ban on sexual orientation and gender identity discrimination. Lawmakers and lobbyists are also jostling over a separate part of the bill that would exempt defense contractors from labor violation disclosure requirements recently put on hold by a federal court.

A conference committee is working to iron out differences between competing National Defense Authorization Act bills passed in each chamber. The measure has been enacted into law 54 years in a row, but the Obama administration has already signaled that the president would likely veto the legislation in its current form.

“I have little doubt that they’ll still be able to come to some conclusion,” Jimmy Christianson, a lawyer for the Associated General Contractors of America, told Bloomberg BNA. “I’m cautiously optimistic that it will include the provision eliminating the new disclosure requirements.”

Religious Freedom or Discrimination?

The House version of the NDAA would limit an executive order (E.O. 13,672) barring discrimination by federal contractors against their workers based on sexual orientation and gender identity.

Sponsor Steve Russell (R-Okla.) has said it is meant to clarify that religious-affiliated employers can take a worker’s religion into account in making hiring decisions. The provision states that federal agencies must “provide protections and exemptions” to contractors that are “consistent with” those already in place under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act.

Sen. Richard Blumenthal (D-Conn.) told reporters Oct. 25 that the provision “would create entirely new exemptions” to the order and “allow sweeping tax-payer funded discrimination.”

Blumenthal and his colleagues are particularly concerned that the legislation would allow religious-affiliated employers to fire or refuse to hire workers based on their sexual orientation or gender identity. They said it would also permit contractors to inquire about workers’ reproductive healthcare decisions, like the use of birth control and in vitro fertilization and make employment decisions based on that information.

The debate comes as lawyers and lawmakers continue to dispute whether federal law already does or should ban employers from discriminating against workers based on sexual orientation and gender identity.

Blumenthal declined to say whether he would vote against the legislation if it leaves the conference committee with the provision intact.

Disclosure Requirements Already on Hold

It is unclear how the eleventh hour decision blocking most of the Fair Pay and Safe Workplaces executive order (E.O. 13,673) will impact negotiations over a Republican-backed provision included in both bills that would exempt defense contractors from the disclosure requirements.

The executive order, which had been slated to go into effect Oct. 25, requires businesses to disclose violations of 14 federal labor and employment laws—and comparable state laws—to compete for government business. A federal judge in Texas issued an injunction to block most of the rule, finding that the Obama administration appeared to have exceeded its authority in crafting the new requirements.

“It all of a sudden makes the legislation relevant,” Steve Hall, general counsel for the American Council of Engineering Companies, told Bloomberg BNA Oct. 25. “Our biggest obstacle was the schedule and whether they would get the NDAA done before the order went into effect. The court’s action gives Congress the lame duck session to resolve this.”

Democrats and worker advocates are fighting to get the exemption dropped from the bill during the committee negotiation process. A lobbyist for the Service Employees International Union, who spoke with Bloomberg BNA on the condition of anonymity, said he expects the Obama administration to lean heavily on Congress to scrap the provision.

The NDAA exemption would apply only to contractors in the defense sector, which accounts for the vast majority of government contracts.

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