Obama has also apparently decided that he will also have to wait until after the election for the flexibility to take presidential action on the issue of LGBT equality in the workplace. Meeting with LGBT advocates this month, senior White House aides, including outreach director Valerie Jarrett, passed the word that Obama would not be issuing an executive order this year to prohibit federal contractors from job discrimination on the basis of sexual orientation or gender identity.
When news of the president’s non-initiative got around, White House press secretary Jay Carney insisted that the president actually was helping advance LGBT rights in the workplace by pursuing legislation rather than issuing an executive order. “We believe that this is the right approach to achieve success here in a broad and comprehensive legislative action,” Carney said at the daily press briefing on April 17. Obama, he added, is “aggressively pursuing” passage of the Employment Non-Discrimination Act (ENDA) by Congress, which would add sexual orientation and gender identity to federal job discrimination law.
Reporters for Washington’s two gay newspapers — Chris Geidner of Metro Weekly and Chris Johnson of the Washington Blade — pressed Carney hard on the issue. As Johnson noted, Congress is “highly unlikely” to approve ENDA this year. Gay rights-averse Republicans control the House, and the election shortens the legislative calendar anyway. Geidner followed by noting that the executive order prohibiting federal contractors from discriminating on the basis of race, color, religion, sex, or national origin – executive order 11246 – has been in effect since 1965. President Lyndon B. Johnson issued the order in September 1965, one year after the Civil Rights Act of 1964 established the same prohibition on employers generally. Geidner pointedly asked whether Obama considers the executive order “redundant” to Title VII, the Civil Rights Act’s job discrimination provisions. Carney had no answer.
In fact, executive order 11246 is not redundant. The order gives the Department of Labor’s Office of Contract Compliance authority to request information about employment and hiring practices from federal contractors; Title VII is enforced by the Equal Employment Opportunity Commission, generally only after complaints from individuals. In addition, the threatened loss of federal contracts [see section 209(a)(5)] is a stronger incentive for compliance than the risk of EEOC sanction or adverse court ruling after protracted litigation.The president’s authority to establish nondiscrimination requirements for federal contractors appears well established. President Franklin D. Roosevelt forbade racial discrimination by defense contractors in 1941. Dwight Eisenhower used an executive order in 1953 to create a government contracts committee to promote compliance with equal employment goals. LBJ’s action put teeth into the policy.
In contrast to the tenuous climate for racial equality in the 1960s, the support today for protecting LGBT equality in the workplace is relatively broad. Twenty states already have laws prohibiting discrimination by public or private employers on the basis of sexual orientation; 15 of those states include protection for gender identity as well. Most big companies now include sexual orientation in their stated nondiscrimination policies. Public opinion polls generally show support for measures to prohibit discrimination against gays and lesbians. In fact, as shown in a poll by the Human Rights Campaign released late last month, an overwhelming majority of Americans believe discrimination on the basis of sexual orientation is already illegal.
With so much support for LGBT equality in the workplace, the question naturally arises whether federal action — in the form of legislation or executive order — is needed at all. Homosexuals are no longer purged en masse from the federal workforce, as they were in the late 1940s and ’50s, or from state employment rolls. But a comprehensive report by the Williams Institute, UCLA’s think tank on sexual orientation and gender identity law and policy, shows that gay and lesbian employees continue to experience discrimination or harassment in their jobs.
In a survey in 2008, for example, one out of five LGBT public sector employees reported workplace discrimination; among transgender employees, the incidence was 70 percent. In the same year, slightly more than one-third of LGBT employees said they were closeted at work. Many undoubtedly worry that they could suffer discrimination if they came out — and, in most of the states, they could, without legal recourse.
Obama deserves credit from gay rights groups for advancing their cause, at some political risk — most dramatically, in winning legislative repeal of the “don’t ask, don’t tell” policy in the military. The administration has taken other incremental steps without congressional action. Immigration and Customs Enforcement, for example, recently moved to allow same-sex couples to file immigration and customs documents together when returning to the United States from abroad, just like other families.
Yet gay rights advocates understandably feel slighted by the administration’s inaction on an executive order. Some expect the order will come after the election, and perhaps it will. Until then, however, Obama’s support for LGBT rights in the workplace, like his “evolving” view on marriage equality, will be seen by many as a work in unnecessarily slow progress.