Executive Orders to the Rescue

The number 13672 is now a lucky one for those against LGBT discrimination.

On December 3, the Office of Federal Contract Compliance Programs announced final regulations that prohibit discrimination against LGBT employees at federal government contractors. The new rules go into effect on April 8, 2015 and are based on Executive Order 13672, written by President Obama in July.

The new regulations replace the phrase “sex, or national origin” with “sex, sexual orientation, gender identity or national origin” throughout equal opportunity clauses used by federal government contractors. It also doesn’t require contractors to collect, report or analyze any data regarding the sexual orientation of gender identity of applicants or employees.

Brett Coburn, a partner with law firm Alston and Bird, said the regulation won’t be a major change for a lot of companies, simply because so many already have internal policies that protect LGBT employees from discrimination even though law doesn’t require it.

Where it could create problems, however, is at organizations like Hobby Lobby that are not religiously affiliated but are privately owned by people with certain religious beliefs. Coburn said that those companies will have to weigh their options to either give up doing business with the government so they’re not subjected to the rule or to challenge the executive order itself.

Executive orders have gotten a bad rap in the media as being the president’s go-to way of passing laws that Congress would never approve — that’s how much of President Obama’s immigration reform and minimum wage work has gotten into the books.

Coburn explained that previous attempts to get sexual orientation included under Title VII, which includes race and gender (and, by extension, gender discrimination), weren’t able to pass through the House, contributing to why the president used executive order power in this case.

But this isn’t the first time executive order has come to diversity’s rescue.

“There’s actually in this area a very strong bipartisan tradition dating back to the days of the FDR administration of prohibiting taxpayer-funded discrimination in the workforce,” said Ian Thompson, a legislative representative for the American Civil Liberties Union. “President Roosevelt signed an executive order requiring federal defense contractors not to discriminate on the basis of race, and that was one of the first significant victories of what would become civil rights movement.”

Subsequent presidents like Truman, Eisenhower, Kennedy and Johnson made similar orders, and the Clinton administration signed an executive order prohibiting the federal civilian workforce from discriminating against LGBT employees. Obama’s order extended that to contractors, which means those working with and for the government are protected — 25 percent of the total American workforce.

But there’s still more work to be done, Thompson said, especially considering how 35 states have legalized gay marriage but only 18 have comprehensive anti-discrimination laws that protect LGBT employees. 

“We could face what would be a truly absurd situation where a same sex couple could get legally married in a state only to find themselves out of a job for doing so and being left without legal resource,” Thompson said. “That situation should deeply trouble people across political spectrum and recognize this is a fundamental issue of fairness.”