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By Chris Opfer
June 16 — President Barack Obama will issue an executive order banning sexual orientation and gender identity discrimination by federal contractors, a White House official told Bloomberg BNA June 16.
“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 official said. “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.”
The announcement comes after years of lobbying by lesbian, gay, bisexual and transgender rights groups for the president to take action to protect workers from bias. The executive order would be the latest in a series of moves, including raising the minimum wage for federal contractor employees and banning retaliation against workers for disclosing or inquiring about pay, taken by the White House after similar legislation stalled in Congress.
The Senate passed the Employment Nondiscrimination Act (S. 815), which would prohibit sexual orientation and gender identity discrimination in all workplaces, in November 2013. The measure hasn't been taken up for a vote in the Republican-controlled House.
White House deputy press secretary Josh Earnest told reporters June 16 that there is no timeline for the order to be signed by the president. Earnest said White House staff is currently working on drafting the order.
Earnest also said the order doesn't mean that ENDA is necessarily dead. “There's nothing in an executive order—that they're still working to put together—that would preclude Congress from taking an important but common-sense step to pass legislation that would prohibit discrimination on the basis of gender identity or sexual orientation.”
Meanwhile, John C. Fox of Fox, Wang & Morgan in San Jose, Calif., called the timing of the order “transparent,” and said it seems to be designed to rally voters and prod a reluctant Congress. President Obama “could issue these executive orders at any time in his last two years of office but has launched now in advance of the mid-term Congressional elections in November,” Fox said.
Obama previously resisted calls from rights groups and Democratic lawmakers to issue the order, saying that he preferred to see Congress address the matter by passing ENDA. Although the President vowed during his January State of the Union address to make 2014 a “year of action,” he didn't specifically mention sexual orientation and gender identity discrimination protection as an area of emphasis.
Earnest said the president decided to issue the order in response to Congressional gridlock. “Quite simply, we've been waiting for quite a few months now for the House to take action, and unfortunately, there aren't particularly strong indications that Congress is prepared to act on this,” he told reporters.
Title VII of the 1964 Civil Rights Act bars employers from discriminating against workers and job applicants based on sex and other protected statuses, but doesn't expressly prohibit sexual orientation or gender identity bias in the workplace. The Equal Employment Opportunity Commission has argued that the sex-stereotyping theory recognized by the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP Cases 954 (1988) includes claims for sexual orientation and gender identity discrimination.
Supporters of the executive order said it provides a clear ban on this form of bias. “The White House statement today is promising, and we look forward to seeing the details of the executive order,” Human Rights Campaign President Chad Griffin said in a statement.
Employers are permitted to fire workers based on their sexual orientation in 29 states, according to the HRC, while 32 states lack bans on gender identity bias.
Some gay rights groups have expressed skepticism about an ENDA provision that would exempt religiously affiliated employers, saying it gives legal protection to those who discriminate against workers in the name of faith. But Senator Orrin Hatch (R-Utah) told Bloomberg BNA via e-mail that he expects the executive order to include a similar exemption.
“ENDA strikes a good balance to ensure that discrimination based on sexual orientation will not be tolerated, but also that one of our nation's fundamental freedoms—religious freedom—is still upheld,” Hatch said. “The same must be said for any Obama Administration initiative on this issue.”
The specific impact of the order on employers is unclear.
Marc Bernstein, a partner in Paul Hastings LLP's New York office, told Bloomberg BNA that the order is likely to have far less reach than the president would like because it's limited to federal contractors and many companies already have sexual orientation and gender identity discrimination bans in place. “I would think that nowadays most companies may very well have voluntarily on their own—both to attract the best and the brightest and because they think it's the right thing to do—have already extended protections to these workers,” Bernstein said.
HRC figures show that 88 percent of all Fortune 500 companies—a group that includes the five largest federal contractors—already prohibit sexual orientation discrimination. More than half (57 percent) of those employers also have gender identity bias bans in place.
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