The White House is expected to announce Monday that President Obama will issue an executive order requiring that all companies who contract with the federal government must not discriminate on the basis of sexual orientation and gender identity. The order, expected to be finalized in the coming weeks, is an extension of orders previously issued by past presidents — most recently Johnson — similarly banning employment discrimination on the basis of race, color, religion, sex, or national origin among all contractors and subcontractors who do over $10,000 in business with the government in any one year.
The protections will reach over one million LGBT workers across the country, making it the single largest expansion of LGBT workplace protections in our country’s history. There continue to be 29 states that offer no employment protections on the basis of sexual orientation and 32 with no protections based on gender identity, but many LGBT workers in those states will now have workplace protections for the first time ever. As many as 43 percent of lesbian, gay, and bisexual people and 90 percent of transgender people have experienced some form of harassment or discrimination in the workplace.
One of the largest companies that could be impacted by the executive order is Exxon Mobil, which last month voted down LGBT employment protections for the 17th time. The company claims to have a “zero tolerance” policy on the books for mistreatment, but that does not have the same legal force or consistency as the protections shareholders have voted down each year. Exxon is also facing an anti-gay discrimination lawsuit, although that suit might be terminated for jurisdictional reasons.
As many as 9 out of 10 voters believe federal law already protects LGBT workers from discrimination. Though this isn’t true, many of the country’s biggest companies do already have corporate policies prohibiting such discrimination. Businesses of all sizes have found that nondiscrimination protections are good for their bottom line, improving the recruitment, retention, and productivity of talented employees and appealing to a wider customer base. A new Human Rights Campaign poll finds that 63 percent of voters support federal LGBT employment protections.
Though Obama had pledged to sign such an executive order during his 2008 campaign, his administration had previously rejected calls for such an executive order for over three years. Press Secretary Jay Carney regularly referred to it as “hypothetical,” stating that the White House preferred a legislative solution for LGBT protections in the form of the Employment Non-Discrimination Act (ENDA). Despite ENDA’s passage in the Senate last fall, House Speaker John Boehner (R-OH) has made it clear that there is “no way” it will pass this year.
The LGBT movement has also become increasingly divided over whether ENDA in its current form is worth pursuing. After two decades of failed consideration in Congress, the bill has been weakened by an exemption that would grant religious organizations unprecedented privilege to continue discriminating against LGBT people. A number of state groups and legal organizations have recently dropped their support for ENDA because they believe that the exemption goes too far and codifies into law the idea that LGBT identities are incompatible with faith. The executive order is thus an important step even if ENDA eventually passes. Though the White House at one point suggested it would be “redundant,” the order will protect employees at businesses that might be too small or that might otherwise be exempted by ENDA.