An Executive Order to Tackle Anti-LGBT Workplace Discrimination?

When in November Republicans won a majority in the U.S. House of Representatives many LGBT rights advocates were mindful that it would likely put an end to chances of passing the Employment Non-Discrimination Act over the next two years. Now, some LGBT rights advocates are turning their attention to President Obama and urging him to use his powers to compel companies the government contracts with to end employment discrimination on the basis of sexual orientation and gender identity.

Whether Obama would be prepared to use his powers in this way remains to be seen. He has in the past voiced support for ENDA but has not been seen to actively push for its passage. However, Obama has used his powers to extend federal partner benefits to gay employees and has sort to extend protections to federal trans workers. An executive order to further those protections would not seem implausible then, and would perhaps denote his intent to seek full legislative protections in the future.

From the Washington Blade:

Nan Hunter, a lesbian law professor at Georgetown University, said a directive protecting LGBT people would be a “terrific idea” because history has shown executive orders for non-discrimination often precede changes in law.

“I think the pertinent piece in terms of the civil rights history is that the federal contractor requirements were put in place prior to the enactment of the statutes,” Hunter said.

In 1964, President Johnson issued an executive order prohibiting most federal contractors from discriminating on the basis of race, color, religion, sex or national origin — prior to the enactment of Title VII of the Civil Rights Act, which provides similar protections in statute. Johnson’s directive could be used as a model for a directive protecting LGBT people.

Hunter said she sees no legal impediment to Obama issuing a workplace non-discrimination order for LGBT people and noted the federal government has “long had the custom” of instituting requirements for contractors that the majority of businesses don’t satisfy.

“That kind of executive order exists with regard to race, sex, religion, other protected characteristics — there is no reason why it could not be issued with regard to sexual orientation and gender identity,” she said.

In 29 states it is still legal to fire someone based on their sexual orientation. In 38 states it is still legal to terminate employment based on a person’s gender identity. The Employment Non-Discrimination Act or ENDA could change that.

Current federal employment discrimination protections cover race, religion, sex, national origin, age and disability. ENDA, as introduced most recently in 2010, would add sexual orientation and gender identity to that list. As such, ENDA would prohibit public and private employers, employment agencies and labor unions from using a person’s perceived or actual sexuality or gender identity as a reason to fire them or to not promote them, or as the basis of making other employment related decisions.

However, the legislation exempts businesses with fewer than 15 employees, as well as religious institutions. This change would not be applied retroactively.

For more information on ENDA as introduced in the previous Congress, please click here.

Unfortunately, the Democratic majorities in the previous Congress failed to take up the legislation due to concerns that there would not be enough votes to pass work place protections for LGBTs and strong resistance from certain groups who objected to gender identity inclusion. With the current Republican majority in the House of Representatives and a reduced majority in the Senate, the chances of passing the bill would appear even slimmer, therefore alternatives are now being sort.

An executive order would not be as encompassing as employment non-discrimination legislation and certainly could not replace legislative action, but it would, in a majority of cases, prevent the federal government from contracting with companies lacking an LGBT-inclusive non-discrimination policy, therein leading more businesses to enact inclusive policies. According to the Williams Institute the government currently contracts with 91,367 companies.

This would serve to protect only a limited number of workers, but without hope of an immediate remedy from Congress, and with individual states slow to take up LGBT-inclusive protections, an executive order – even considering its limitations in both scope and longevity – could be seen as a viable alternative in the short term and specifically could offer much needed gender identity-inclusive protections until a fully inclusive ENDA can be passed.


Photo used under the Creative Commons Attribution License, with thanks to brainchildvn.


Barbara Erdman
Barbara Erdman8 years ago


Mary Bakarich
Mary Bakarich8 years ago


K s Goh
KS Goh8 years ago

Thanks for the article.

Kathleen D.
Kathleen D8 years ago

Colorado is a 'Right to Work State'. Sounds like an employee friendly state, right? Wrong; it is one more way politcians twist things to make it sound like the right bill to support with our vote during elections. This legislation, in fact, supports the right of the employer in Colorado, to fire for any reason other than sex or age discrimination. And, even with that, you've got to have concerete evidence to support your complaint. I mean concrete, with lots of back-up, other witnesses to corroborate your complaint.

This state is so unfriendly to employees, you'd better not be gay, or let the potential employer know you are because, they will fire you for who you are.

Any gay or lesbian should be able to be who they are. I've known and worked with both groups. They are no different that anybody else on this planet except for their sexual orientation. It is just plain wrong and if we don't recognize and identify the abusers of creating such 'oppressive' work environments and, make meaningful change in the workplace, then, this country is really going way too far to the right in the wrong direction!

kenny s.
Kenny Stidham8 years ago

If you vote and voted for BUSH you support the murder of everyone who has died since this supid war in iraq started. The solution to abortion is for "breeders" aka as hetrosexuals to stop producing more of the same. A-hole type parents aka gay-hating christians produce little haters just like their parents.
There is nothing worst than having to get up and go to work at a job you dont like THEN on top of that think you have to take abuse from co-workers, the public, and employers. NO ONE HAS TO TAKE ABUSE FROM ANYONE. Report any type of abuse to human resources, your managers, supervisors etc. Let everyone at work know what is going on. Report abuse to the poice. Let local law enforcement know. Let your friends and family know. Get as much support as you can. So what if someone loses their job. The people who harrass dont deserve a job if going to work means giving other people you work with a hard time. Hire a gay friendly lawyer. Dont let haters get by with their sh*t.

William Y.
William Y8 years ago

Why is it that so many heterosexuals think that homosexuals, bisexuals & transsexuals have nothing on their mind but sex?
When I was working, my sexual prefs stayed with my stamp collection, at home, not in the workplace.

Jeannie Miner
Jeannie Fuchs8 years ago

Sad but true that some states can still fire you for your choice of sex. Also as I was once told the Motel would not hire me because I was gay & how would other maids feel, if I was working with them, cause as soon as the bent over I would be looking at there rears (Yeap I swear that is what the motel told me). Anyways when I tried to get a lawyer so I could sue for discremination, I was told that work places in AR does not recognize that as discremenation (only color, age, and weather I am man or women is discremenation in this state).

Kathleen D.
Kathleen D8 years ago

Tavis; the article has nothing to do with abortion, pro-choice, whatever. Wait for an article as such to air your complaint. The fact that there is such vile discrimination in the work place is indicative of a problem that needs to be addressed now.

Huge corporations in this country have become so powerful that attorneys don't take them on because they know that corporation has their own VERY POWERFUL attorneys armed and loaded with every argument in the book to support the corporate agenda.

Big corporations such as Home Depot claim to embrace diversity and they hire their token 'diverse' but, they have created one of the most oppressive work environments in this country.

Government is responsible for the checks and balances and to support the majority consensus. Your own views of what should or should not be Tavis has, in fact, been remedied with majority consensus!

Wayne M.
Wayne M8 years ago

Tavis: You oppose regulation to prevent workplace discrimination because you do not want government involved in every part of your life. Give me a break! Government in a democracy is one way that people act collectively to prevent discrimination and other undesirable behaviour, including discrimination. Protecting human rights is a legitimate government function.

I find it interesting that the same people who don't want government to intervene to stop discrimination against LGBT people in the workplace or in housing then turn around and want government to pass laws telling people who they can or cannot marry.

Sharon H.
Sharon H8 years ago

Go back to that topic and answer the question I asked you on it...