On June 16, President Obama announced he would take unilateral action by signing an executive order that will prohibit businesses with federal contracts exceeding $10,000 from discriminating against their employees on the basis of sexual orientation and gender identity.
The order will not extend to private sector businesses that don’t have such contracts with the federal government, although many large businesses already have policies that prohibit discrimination against the LGBT community. Ninety percent of Fortune 500 companies have such policies.
According to Politico, the order will cover 28 million workers.
Unlike laws that ban discrimination on the basis of race, gender or religion, there is no federal law that protects the Lesbian, Gay, Bisexual, and Transgender (LGBT) community from discrimination in the workplace.
Currently, 29 states allow employers to fire, discriminate or refuse to hire people based on their sexual orientation. However, 21 states and the District of Columbia have laws forbidding employment discrimination based on sexual orientation and 18 states and the District of Columbia also prohibit workplace discrimination based on gender identity.
The Obama Administration’s executive order was in response to House Speaker John Boehner’s unwillingness to put the Employment Non-Discrimination Act (ENDA) up for a vote in the House of Representatives. Although Obama will sign the executive order, he has stated that he would have preferred to pass ENDA in Congress.
ENDA would have provided protections against workplace discrimination on the basis of sexual orientation or gender identity to all Americans. It also would have barred preferential treatment. Small businesses with less than 15 employees, religious organizations and the military would have been exempted.
ENDA was introduced and approved in the Senate with a bipartisan vote of 64-32. But Speaker Boehner argued, “People are already protected in the workplace” and the bill is “unnecessary and would provide basis for frivolous lawsuits.”
Advocates for expansion of LGBT rights, including the Human Rights Campaign, the National Gay and Lesbian Task Force, the It Gets Better Project and the ACLU have expressed support for Obama’s decision to take executive action. They maintain that all employees have the right to be judged by the quality of their work rather than their lifestyle outside of the work place.
LGBT activists also argue that the lack of regulation against discriminatory practices compromise fairness in the job market. They point out that the LGBT community is susceptible to harassment, being denied promotions or a job because there are no rules protecting it, which provides others with an unfair competitive advantage.
Although conservative lawmakers have not said much yet about the executive order, some have stated that the government should not be meddling in the free market and that politicians should allow businesses to make decisions about how they hire their employees.
Opponents of the executive order also contend that it will foster reverse discrimination. They assert that the law will not preserve equal rights for all, but instead result in one group of people being treated preferentially based on their lifestyle rather than any inherent biological trait.
Although many in the LGBT community believes that the Obama Administration has spent years dragging their feet to pass reform, they also will see the signing of the executive order as a big step forward for equal rights. But until ENDA passes in congress, LGBT individuals will not be fully protected from what is considered workplace discrimination and harassment under the law.