REPORT: 16 Million Employees Could Receive Nondiscrimination Protections From Executive Order

As the White House considers issuing an executive order prohibiting discrimination in employment on the basis of sexual orientation and gender identity by federal contractors, the Williams Institute are out with a new report showing that 11 to 16 million additional employees would gain protections as a result of the measure.

The study, first obtained and published by Metro Weekly’s Chris Geidner, argues that while many businesses and states have extended equal treatment on the basis of sexual orientation and gender identity, a good number of “federal contractors do not currently have those policies, and they employ millions of workers.” Therefore, if President Obama amends Executive Order 11246 — which establishes requirements for non-discriminatory practices — or issues a separate executive order, he would effectively shield the LGBT community from discrimination and establish a precedent for passing the Employment Non-Discrimination Act or ENDA.

The Williams Institute, along with the Center for American Progress, have laid out the case in a confidential memo to retiring Rep. Barney Frank (D-MA). In that document, the groups review the legal and political challenges the White House may encounter if it pursues the issue:

— WHAT THE ORDER SHOULD SAY: An executive order may require federal contractors to (1) adopt nondiscrimination policies for sexual orientation and gender identity; (2) actively recruit and retain LGBT employees and educate all employees to prevent workplace harassment and discrimination; and (3) extend benefits to domestic partners.


— AFFIRMATIVE ACTION: Requiring numerical placement goals for sexual orientation and gender identity would communicate a strong commitment to diversity…However, doing so may be logistically, legally and politically problematic. An executive order could instead classify sexual orientation and gender identity with national origin and religion for purposes of affirmative action. Alternatively, the executive order could omit any reference to any form of affirmative action based on sexual orientation or gender identity.

— HEALTH BENEFITS: Such an order could require parity in benefits for both employees with a same-sex domestic partner and those with a different-sex domestic partner, or just those with a same-sex partner… Requiring private businesses to offer health insurance to employees and their same-sex partners when the federal government does not do so may prompt some resistance from the private sector. However, such a response would be in contrast with the positive assessments given by the employers that already have equalized their health insurance plans, and the government entities with such policies already in place.

— IS IT CONSTITUTIONAL: It is well within the president’s legal authority to issue either an amended or a new executive order to require that federal contractors not discriminate based on sexual orientation and gender identity… However, the lack of Supreme Court precedent on the constitutionality of nondiscrimination executive orders, as well as the lack of recent case law affirming the constitutionality of such orders, adds a modicum of uncertainty to the legal analysis. If a contractor were to challenge the proposed executive order, courts would most likely use two tests to determine whether the president had authority to issue it: (1) the “economy and efficiency” test; and (2) the conflicts test.

The Labor and the Justice Departments have reportedly approved the order and it is now awaiting White House approval. Last week, news broke that DynCorp International LLC — a military contractor that works closely with the federal government — has adopted an LGBT-inclusive non-discrimination policy in response to a petition asking the company to embrace more inclusive standards.