Last month, President Obama signed an Executive Order barring federal contractors from discriminating against employees on the basis of sexual orientation or gender identity. The Order simply adds sexual orientation and gender identity to a list of characteristics—race, color, religion, sex, and national origin—already protected under an Executive Order signed by President Lyndon B. Johnson, and enforcement is to be handled by the U.S. Department of Labor’s Federal Contract Compliance Programs. In a press release outlining the President’s action, the White House took pains to describe both employer and public support for LGBT workers in the workplace, including the fact that 91% of Fortune 500 companies prohibit sexual orientation discrimination and 61% prohibit discrimination based on gender identity. Further, 63% of registered voters favor federal legislation protecting LGBT employees from workplace discrimination.
This is the President’s second recent foray into lawmaking on behalf of American workers through the use of the Executive Order. As Jenn Siegel wrote here earlier this month, July of 2014 also saw President Obama issued the Fair Pay and Safe Workplaces Executive Order. That Executive Order addressed a range of federal contractors’ workplace practices, ranging from disclosing recent labor law violations to barring those employers whose government contracts exceed $1 million from requiring employees to sign mandatory arbitration clauses relating to disputes arising from Title VII or sexual assault/harassment-related torts.
It is heartening to see the President take the lead on promoting policies that, in the White House’s words, are good for business and promote fair pay and safe work environments for American workers. Although Congress has been willing to take such steps in the past—the Lilly Ledbetter Fair Pay Act, responding to the Supreme Court’s draconian reading of Title VII’s statute of limitations, comes to mind—we have entered into an era of record stalemate in Washington.
Executive leadership may be the best, and only, way to increase workplace fairness at the moment, but it does not come without problems. First, government contractors employ just over 20% of the American workforce according to the Human Rights Campaign. That’s a significant percentage, but what about the other 80%? As HRC points out, the Executive Order protecting against sexual orientation and gender identity discrimination will protect tens of millions of employees, but many millions more remain without protection under federal or state law.
Second, acting without Congress can leave these efforts susceptible to claims of executive overreach. A statement by the socially conservative Family Research Group described the Executive Order expanding anti-discrimination protections to cover sexual orientation and gender identity as “coercion” and “bullying.” A news article reporting the Fair Pay and Safe Workplaces Executive Order included derisive comments from business advocates about the President’s use of “the federal procurement process as his own little ‘laboratory’ for bad ideas in labor policy.” Although it is unlikely that these groups would silently accept Congressional action to protect LGBT workers either, unilateral executive action can be portrayed as undemocratic, distracting from the core facts the White House sought to emphasize—that the majority of businesses and citizens agree with the President.
Thus, while the President’s recent use of the Executive Order as a tool for increasing workplace equality and employer accountability may be cause for celebration, it is also a reminder that advocates have a long way to go to create lasting protections for the millions of American who are not covered by the Order or by state law. Although the Supreme Court’s Hobby Lobby decision complicated the LGBT rights community’s efforts to pass a general federal anti-discrimination law, the statistics cited in the more limited Executive Order suggest that a coalition does exist to support creative solutions at the local, state, and federal levels in the future.