Faced with an intransigent Congress, and after years of stalling, the Obama administration has announced that President Obama will sign an executive order to protect LGBT federal workers from workplace discrimination.
The announcement came Monday in a statement made to the press. According to one White House official, the executive order will “build upon existing protections, which generally prohibit federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.”
In fact we know that Obama has the language already on his desk, and that it has been ready since 2012 when, faced with the hostility of the US House and the likelihood that ENDA would not get through Congress for a good few years yet, the executive order was drafted as an appropriate and even attractive short-term measure. To no small amount of criticism, Obama resisted calls to sign the order, instead saying that it was up to Congress to act on this matter to create a permanent solution rather than an executive order that, with an LGBT rights-hostile president, could be allowed to lapse.
Earlier this year it seemed things on the ENDA front were looking up, too. The Senate, for the first time in years, passed a version of the bill with strong bipartisan support. That came at a cost, however, and one that was a deal-breaker for many LGBT rights supporters. The bill contained religious exemptions so broad that they rendered the workplace protection coverage spotty at best.
Nevertheless, it seemed that concessions had been made to try to make the bill palatable, in particular, to House Republicans. That succeeded, with a number of Republicans saying they were in favor of these basic protections or even agreeing to cosponsor the bill. Yet House Speaker Boehner, in a move that once again sees him playing to the extreme right-wing in his party, has decided that he will not allow the bill to come to the floor because, despite the facts, he believes it is “unnecessary.”
The White House official’s statement announcing the order explains precisely why both an executive order and the full legislation (without the gaping wide religious exemptions) is necessary:
“Today, millions of Americans in most states in the country go to work every day knowing they could lose their jobs simply because of who they are or who they love. No current federal law adequately protects lesbian, gay, bisexual, and transgender (LGBT) workers from employment discrimination. That’s why the President has long supported federal legislation to explicitly prohibit employers from discriminating on the basis of sexual orientation or gender identity.”
To put that in context, it is still legal in 29 states to fire someone simply for being gay, and while federal law does already cover gender identity, 32 states leave trans people vulnerable because state law lacks explicit trans-inclusive protections.
The executive order will prevent companies which contract with the government from discriminating on grounds of sexual orientation or gender identity. It’s estimated that federal contractors make up about 20% of the workforce. The Williams Institute has said that according to its data, an executive order could protect up to 11 million more gay people and 14 million workers relating to their gender identity.
The order will form part of a raft of actions President Obama has promised as, faced with the most unproductive Congress in recent memory if not ever, he seeks to do what he can to plug legislative gaps and remedy issues that Congress should be attending to itself. The exact timing of the order is interesting though. It appears that Obama had prepared to announce the order at an event to close out Pride month at the back-end of June. However, protesters had planned to attend events throughout the month in which they would call on Obama to sign the order. This hasty announcement does, then, seem an act to try to quell that disquiet.
To be sure, the change will not be as comprehensive as Congress passing the Employment Non Discrimination Act as it can only serve to ban workplace discrimination against employees of federal contractors, but we can demonstrate some real changes that will have to be made by some companies. An overwhelming majority of Fortune 500 firms already have these protections in place, and many industry giants moved to enshrine these protections long ago. There are some notable exceptions, however, such as Exxon which annually seems to almost delight in announcing that it has yet again failed to enact an LGBT-inclusive workplace protection plan. With the executive order in place though, Exxon will likely have to issue a policy that specifically enumerates LGBTs.
The news of the ENDA order has therefore been greeted warmly, with the Human Rights Campaign’s Chad Griffin saying in a statement:
“By issuing an executive order prohibiting federal contractors from discriminating against LGBT people, the President will not only create fairer workplaces across the country, he will demonstrate to Congress that adopting federal employment protections for LGBT people is good policy and good for business. The White House statement today is promising, and we look forward to seeing the details of the executive order.”
However GetEqual, which has spearheaded grassroots campaigning for the order, is singing a note of caution that the order must not contain any unnecessary religious exemptions or risk the order being badly compromised. We don’t know the precise language yet, but this is something LGBT rights groups will be keen to monitor throughout the remainder of the month. That very valid concern to one side just for a moment, the order is significant and should be celebrated as soon as the ink is dry. Of course, it won’t remedy the problem of anti-LGBT workplace discrimination entirely, but it is a significant step in the right direction.
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