On July 21, President Barack Obama signed an Executive Order prohibiting federal contractors from employment discrimination based on sexual orientation or gender identity.
Federal Employment Law Insider editor David S. Fortney, Elizabeth B. Bradley, and Emily Bristol, attorneys with Fortney & Scott, LLC in Washington, D.C., issued a statement after Obama signed the order. They explained that the order marks the first time a national standard has been established. They called it “a historical moment for the expansion of civil rights laws to include the LGBT status as a protected category.”
The Executive Order does not include a new exemption for religiously affiliated contractors. Several religious leaders sought such an exemption after news of Obama’s plan was reported in June.
A fact sheet from the White House explains that an Executive Order issued by President Lyndon Johnson in 1965 prohibits federal contractors from discriminating against employees based on race, color, religion, sex, or national origin. Obama’s new Executive Order adds sexual orientation and gender identity to the list of protected categories.
The fact sheet goes on to explain that the new order does not allow for any exemptions other than the one added by a 2002 Executive Order issued by President George W. Bush. That order permits religiously affiliated contractors to favor individuals of a particular religion when making employment decisions.
Effect of Hobby Lobby ruling
The Fortney & Scott attorneys’ statement called the lack of exceptions for religious entities the “most interesting aspect of the presidential action.” They explained that in the wake of the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., “we may see religiously affiliated federal contractors ask the federal court to enjoin the Executive Order’s protections for the LGBT community.” In the Hobby Lobby case, the owners of the corporation successfully argued that abiding by the contraceptive mandate in the Affordable Care Act (ACA) would violate their religion.
The Fortney & Scott attorneys noted that many federal contractors already extend nondiscrimination protections to the LGBT community, “so this may not significantly change their existing policies and practices.”
“It is also noteworthy that the new Executive Order not only prohibits discrimination on the basis of sexual orientation and/or gender identity but also requires that federal contractors take affirmative action to ensure applicants and employees are treated without consideration of sexual orientation and/or gender identity,” the Fortney & Scott attorneys said. “The Executive Order does not provide any information as to how federal contractors are to achieve these new obligations.”
The attorneys said how the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) designs and implements regulations that take into account the new requirements will be key.
“The agency has been given 90 days to propose regulations, so we expect to see a Notice of Proposed Rulemaking in mid to late October, and the new requirements will apply to contracts that are entered into on or after the effective date of the OFCCP final rules,” the attorneys said.
Executive Order instead of legislation
Rather than addressing the sexual orientation/gender identity issue with an Executive Order, which is legally limited to just federal contractors, Obama had hoped Congress would pass the Employment Non-Discrimination Act, a bill that would have applied to more employers than just those with government contracts. That bill has passed the Senate but not the House.
The White House fact sheet states the new Executive Order “is consistent with the President’s commitment to advancing equality for the LGBT community, as well as his commitment to expanding opportunity for American workers and strengthening American business.”
The fact sheet notes that 18 states and Washington, D.C., have laws explicitly protecting LGBT workers from being fired because of their sexual orientation or gender identity.