President’s Order Would Ban Discrimination for Some LBGT Employees

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By Ilyse Wolens Schuman

The White House announced this week that President Obama will soon issue an Executive Order (EO) banning certain federal contractors from discriminating against their employees on the basis of sexual orientation or gender identity.

The order is a means of enacting – if only for federal contractors – a scaled-down version of the Employment Nondiscrimination Act (ENDA), which has stalled in Congress. ENDA would make it unlawful for most private employers to refuse to hire or discriminate against individuals on the basis of actual or perceived sexual orientation or gender identity.

Back in November 2013, the Senate passed ENDA with an amendment related to the bill’s exemption for religious entities. The House has not taken up ENDA, nor is it expected to this year.

Not much impact on federal contractors

The Executive Order will not likely have a significant impact on many federal contractors. To date, 21 states and the District of Columbia already have laws banning employment discrimination based on sexual orientation; 18 states and D.C. have laws also prohibiting discrimination based on gender identity.

In addition, several cities have enacted local laws/ordinances banning such discrimination. Moreover, a majority of Fortune 500 companies have non-discrimination policies covering sexual orientation and/or gender identity as protected categories.

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The order follows several employment-related initiatives enacted at the Executive level in recent months. In February 2014, the President issued an E.O. setting the minimum wage of certain federal contractors to $10.10 per hour starting January 1, 2015. One month later, the White House issued a memorandum directing the U.S. Department of Labor to revise its “white collar” overtime exemption regulations.

Another step in the “year of action”

On April 8, 2014, the President signed an Executive Order — Non-Retaliation for Disclosure of Compensation Information – making it unlawful for contractors to retaliate against employees who disclose their pay information. The same day, President Obama issued a memorandum – Advancing Pay Equality Through Compensation Data Collection – directing the Department of Labor to issue regulations within 120 days that will require federal contractors and subcontractors to submit to the DOL summary data on the compensation paid their employees, including data by sex and race.

President Obama had stated that if Congress does not move on various pieces of legislation, he would use his Executive powers to advance certain aims. The most recent Executive Order is considered yet another step in this “year of action.”

This was originally published on Littler Mendelson’s Workplace Policy Update blog© 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Ilyse W. Schuman is a shareholder in the Washington, D.C. office of Littler Mendelson. She provides strategic counsel and representation to clients on a broad array of workplace issues and developments in Congress and executive branch federal agencies.

She is a member of the firm's Government Affairs practice and works with employers in multiple industries, including trade associations. She also leads the firm's Legislative and Regulatory practice.

A former top congressional staffer and policy advisor, Ilyse worked on the Senate Committee on Health, Education, Labor and Pensions from 2001 to 2008, serving as minority staff director and chief counsel. She began her work in the Senate as chief labor counsel for Senator Mike Enzi on the Subcommittee on Employment, Safety and Training, where she led legislative and oversight activities.

After leaving the Senate, Schuman joined a leading trade association of electro-industry manufacturers as vice president, where she served as managing director of the Medical Imaging and Technology Alliance, the collective voice of medical imaging equipment manufacturers. Additionally, she served as in-house counsel at a manufacturer and market and technology leader, where she advised the company on human resource matters. In law school, she was a member of the Journal of Law and Policy in International Business.