In 2008, then-candidate Obama pledged that if elected president, he would use an executive order to protect the LGBT employees of all federal contractors from discrimination. After several years of pressure from LGBT advocacy groups, the Obama administration still refuses to act on this executive order, explaining that it would prefer that Congress pass the Employment Non-Discrimination Act (ENDA).
Advocates have called for both, but this Thursday, White House Press Secretary Jay Carney told the Washington Blade that the administration believes the executive order would be “redundant” if ENDA passed into law. When the Blade pointed out that the executive order would protect people that ENDA would not, Carney stayed committed to the administration’s ENDA-only position, calling such other possibilities of discrimination “hypothetical.”
In reality, the two would work in conjunction. On its own, the executive order would extend protections to an estimated 11 to 16 million employees of federal contractors who are not already protected by their companies. Though ENDA would extend to all public and private employers instead of just contractors, the executive order would still protect many workers that ENDA wouldn’t. There are at least two significant reasons why ENDA — watered down after decades of haggling — and a nondiscrimination executive order would not be “redundant.”
First, ENDA does not cover small businesses. In its current form, passed by the Senate in November, the bill defines “employer” as a business that has “15 or more employees for each working day in each of 20 more calendar weeks in the current or preceding calendar year.” This means that there are many small businesses that would be totally exempt from the protections ENDA extends to LGBT employees. Any such business that provided at least $10,000 of service to the federal government, however, would be bound by the expectations of an executive order, regardless of how many employees work there daily.
Secondly, ENDA has a glaring religious exemption that would allow many organizations and some businesses to continue discriminating against LGBT employees. According to the bill, any employer that is allowed to discriminate on the basis of religion according to Title VII of the Civil Rights Act of 1964 could also still discriminate on the basis of sexual orientation and gender identity. This is true even though the religious exemption they enjoy does not allow them to discriminate on the basis of other characteristics like sex, race, national origin, or disability. Thus, ENDA would still allow religious corporations and schools, for example, to either refuse employment because of someone’s LGBT identity, or condition employment on conformity to anti-LGBT doctrine. Any such organization that was also a federal contractor, however, would be bound by an executive order to not discriminate.
All of the major LGBT organizations that the Blade reached out to disagreed with Carney’s description of the executive order, including the Human Rights Campaign, the ACLU, the National Gay & Lesbian Task Force, and Freedom To Work. In particular, Freedom to Work pointed out that an executive order would allow the Labor Department to proactively investigate companies for discrimination, whereas ENDA would only provide relief after a victim of discrimination files a complaint. Such audits already take place to ensure that federal contractors are complying with nondiscrimination protections that are already enforced by executive order for other protected identity characteristics.
Claiming that the executive order is “redundant” also further contradicts the justification that the Obama administration used for raising the minimum wage for federal contractors earlier this year. If Congress approves a nation-wide minimum wage hike to the same rate, then that executive order would no longer serve a purpose. In contrast, not only would an LGBT nondiscrimination order protect millions of employees until Congress passes ENDA — which House Speaker John Boehner says won’t be happening this year — it would continue to protect many employees that would not be covered by ENDA.
In the meantime, it remains legal to discriminate on the basis of sexual orientation in 29 states and on the basis of gender identity in 32 states (once Maryland’s new law takes effect).