What the Executive Order Does:
This Executive Order amends two earlier executive orders: it amends Executive Order 11246, which prohibits discrimination by federal contractors to add sexual orientation and gender identity to the existing prohibitions of race, color, religion, national origin, age and sex discrimination. In addition, Executive Order 11478, which, as amended, bars discrimination against federal employees on the basis of race, color, religion, sex, sexual orientation, national origin, disability and age, is further amended to include gender identity. Notably absent from the Executive Order is an expanded religious exemption requested by some communities of faith, similar to the one included in ENDA. However, President Bush’s Executive Order 13279, which permits religiously affiliated federal contractors to favor individuals of a particular religion when making employment decisions remains in effect.
The new Executive Order states that the provision affecting federal employees will take effect immediately. The provision affecting federal contractors and subcontractors likely will be implemented by early 2015.
What Does This Mean for Employees:
In eighteen states, including California, Minnesota, Oregon and Washington, and in the District of Columbia, laws already exist to protect employees from discrimination based on sexual orientation and gender identity. Additionally, the White House’s Office of the Press Secretary notes that most of America’s major companies have already included LGBT protections within their non-discrimination policies: 91% of Fortune 500 companies prohibit discrimination based on sexual orientation and 61% prohibit discrimination based on gender identity. Among the 50 largest federal contractors, which represent nearly half of all federal contracting dollars, 86% prohibit discrimination based on sexual orientation and 61% prohibit discrimination based on gender identity.
However, there are still 29 states without express job protections based on sexual orientation, and 32 states lack bans on gender identity discrimination. There are an estimated 14 million employees of federal contractors who live in states without state law protections that will now be covered.
What About the Employment Non-Discrimination Act (ENDA):
President Obama has reaffirmed that there remains a need for ENDA. Although ENDA was passed by the Senate in November 2013, ENDA is unlikely to be taken up for a vote in the House anytime soon. In signing the Executive Order, President Obama stated “I’m going to do what I can, with the authority I have, to act. 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.”
Authored by Ed Reeves and law clerk, Dexter Pearce.