Obama's LGBT Order More Likely to Be Amended Than Rescinded

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Jay-Anne B. Casuga

The fate of an executive order barring government contractors from discriminating against lesbian, gay, bisexual or transgender employees and applicants remains unclear. It may be more likely that President Donald Trump will broaden its religious exemption than outright rescind the order, observers told Bloomberg BNA.

The executive order, which was signed by former President Barack Obama in 2014, was back in the spotlight recently after the removal of a White House LGBT webpage on Inauguration Day and comments from White House press secretary Sean Spicer that he didn’t know if Trump plans to overturn the order. The Labor Department report “Advancing LGBT Workplace Rights” apparently was also removed from the DOL’s website.

Days before the inauguration, the Log Cabin Republicans, a Washington organization that represents LGBT conservatives, submitted a white paper to Trump’s transition team. The group argued in favor of preserving the executive order.

“This shouldn’t be seen as partisan,” Gregory Angelo, president of the Log Cabin Republicans, told Bloomberg BNA. “Discriminating because of sexual orientation or gender identity is not in line with American values.”

Scant Pushback From Business Community

The executive order is enforced by the Labor Department’s Office of Federal Contract Compliance Programs, which monitors government contractor compliance with affirmative action and nondiscrimination obligations.

When the OFCCP issued rules implementing the order, there was little, if any, pushback from the business community, David Cohen, president of DCI Consulting and a co-chair of the OFCCP Institute, a national nonprofit employer association in Washington, told Bloomberg BNA.

The rules didn’t impose any new applicant or employee data collection, statistical analysis or affirmative action requirements—elements that could have raised objections among some contractors.

Instead, the rules require only that contractors refrain from discriminating against LGBT individuals, utilize a new “EEO Is the Law” poster supplement, and add “sexual orientation” and “gender identity” to their EEO tag line in advertisements if they list the other protected characteristics, Michelle Phillips, a management attorney with Jackson Lewis in White Plains, N.Y., told Bloomberg BNA.

“That’s all the executive order requires,” said Phillips, whose employment litigation practice emphasizes sexual and racial harassment and LGBT matters.

Otherwise, the OFCCP encouraged contractors to update their equal employment opportunity policies to include sexual orientation and gender identity, she said.

Cohen said many contractors had already adopted those types of changes, or updated their internal EEO policies, before the executive order was issued.

Religious Exemption Could Be ‘Beefed Up.’

As an alternative to rescinding the order, Cohen predicted that Trump instead may amend it to incorporate a “beefed up” religious exemption.

Chris Chrisbens, a management attorney with Jackson Lewis in Denver, agreed that there are “definitely opportunities to broaden the exemption” and not “throw the baby out with the bath water.”

The order’s current exemption allows federal contractors that are religious corporations, associations, educational institutions or societies to favor employees and applicants of a particular religion in employment decisions, such as in hiring. That exemption was added to the order in 2002 by President George W. Bush.

The OFCCP also continues to recognize the “ministerial exception,” a judicially created doctrine that bars government interference with a religious organization’s employment decisions regarding ministers.

Last year, Rep. Steve Russell (R-Okla.) proposed an amendment to a national defense bill that he said was intended to clarify Obama’s LGBT order and reinforce religious exemptions already included in laws banning workplace discrimination

Russell ultimately agreed to drop the amendment in November after the presidential election. His spokesman, Daniel Susskind, told Bloomberg BNA at the time that the Trump transition team assured them that their concerns would be addressed via executive order.

When asked more recently for a status update, Susskind told Bloomberg BNA he hasn’t “heard anything one way or another” about the status of the LGBT order.

Aside from potentially incorporating Russell’s amendment, a broader exemption could take several different forms.

It could, for one, shield religiously affiliated contractors from the LGBT order’s nondiscrimination requirements entirely and not just allow employment preferences based on religion, Cohen said.

Not Limited to Religious Affiliation?

Trump potentially could broaden the exemption to encompass contractors that aren’t specifically religious corporations, associations, educational institutions or societies, Phillips and Chrisbens said.

Such an amendment could be akin to provisions in the Religious Freedom Restoration Act, they said.

The RFRA, for example, exempts employers from nondiscrimination requirements under Title VII of the 1964 Civil Rights Act if they can show that the Equal Employment Opportunity Commission’s enforcement of Title VII would substantially burden their ability to conduct business based on sincerely held religious beliefs.

A broader exemption also could potentially track the one proposed in the last version of a bill known as the Employment Non-Discrimination Act, which was introduced in 2013. That bill, which has repeatedly stalled in Congress, would have amended Title VII to include sexual orientation and gender identity as classes protected from workplace discrimination.

Chrisbens said the ENDA proposal would have granted a complete exemption to houses of worship, religious schools and missions; codified the ministerial exemption; and allowed religious organizations to require employees and applicants to conform to religious tenets.

Phillips, however, said she believes that if Trump amends the LGBT order’s exemption, it would be broader than the one proposed in the ENDA.

One Possible Point Toward Rescission

One potential indication that Trump could favor rescission over amendment, though, is his support of federal legislation knows as the First Amendment Defense Act.

The bill, in part, would bar the government from denying contracts based on a person’s or organization’s religious opposition to same-sex marriage and sexual relationships outside of marriage generally. The bill stalled in Congress last year but is expected to be reintroduced.

“I don’t see how Mr. Trump could reconcile his support for FADA” with broadening “an exemption to a law that prohibits LGBT discrimination by federal contractors,” Chrisbens said.

Order’s Symbolic Value, Role in Fairness

Seeds of uncertainty about the executive order’s future were planted during Trump’s election campaign.

On one hand, Trump vowed to “cancel every unconstitutional executive action, memorandum and order issued by President Obama.” On the other, he also stated that he would be a “friend” to the LGBT community.

In the absence of federal legislation expressly prohibiting discrimination based on sexual orientation or gender identity, the LGBT executive order plays a “very important role” in ensuring workplace fairness, Angelo, of the Log Cabin Republicans, said.

Preserving the LGBT executive order also would have symbolic value. It would allow the president to “show that he will govern as a friend to the LGBT community as he promised in his campaign,” Angelo said.

By contrast, rescinding the order would “cause confusion and disruption on an issue that is not contentious,” Jennifer Pizer, senior counsel and law and policy director for Lambda Legal, an LGBT civil rights organization.

“For a long time, the general public has believed that those protections are in place and has supported them because fairness in the workplace is a widely held public value,” Pizer said.

Maintaining the order would be “fully consistent with that principle.”

Past Opposition to Executive Order

Both Angelo and Pizer separately said they weren’t aware of any movements specifically targeting the executive order for rescission.

However, there are religious and social conservative groups that generally oppose pro-LGBT policies, they said.

The Family Research Council, for example, opposed the LGBT order in a September 2014 issue analysis.

The council argued that sexual orientation and gender identity were “inappropriate categories” for protection because those characteristics aren’t “inborn, involuntary, immutable, innocuous, and/or in the Constitution.”

It added that Congress has rejected attempts to amend Title VII to include those categories. As such, the executive order doesn’t reflect the will of the people expressed in Congress.”

Further, the council viewed the order as Obama “using the contracting process as a tool to impose his ideological will upon private employers,” to attack religious liberty and to “punish Americans who dissent from the politically correct ideology of the sexual revolution.”

Council representatives didn’t respond to Bloomberg BNA’s repeated requests for comment.

Angelo agreed that legislative action with reasonable religious exemptions is the “strongest and most lasting way of achieving full LGBT equality.”

But in its absence, there’s no reason to rescind a nondiscrimination executive order that’s been “implemented to date without incident,” he said.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law