The President yesterday signed a long-awaited executive order barring workplace discrimination on the basis of gender identity or sexual orientation.
“For more than two centuries, we have strived, often at great cost, to form ‘a more perfect union’ – to make sure that ‘we, the people’ applies to all the people,” President Obama remarked before signing the order. “Many of us are only here because others fought to secure rights and opportunities for us. And we’ve got a responsibility to do the same for future generations. We’ve got an obligation to make sure that the country we love remains a place where no matter who you are, or what you look like, or where you come from, or how you started out, or what your last name is, or who you love – no matter what, you can make it in this country.”
The President’s order does not itself provide a religious exemption for federal contractors, an issue that became even more critical following the US Supreme Court’s decision in Burwell v. Hobby Lobby. In that case, the Court cited an accommodation to the Affordable Care Act’s contraceptive coverage benefit – made to religiously affiliated non-profits – in deciding that closely held for-profit corporations should not be required to cover contraceptives if the owners had religious objections. The federal government, however, already allows religiously affiliated federal contractors to favor hiring employees of their religion.
The executive order will apply to roughly 28 million workers – one-fifth of the U.S. workforce, according to Politico - but it does not reach all employers nationwide. The executive order applies only to the federal government and employees of federal contractors. The federal government is already prohibited from discriminating based on sexual orientation, but the order will extend those protections to transgender workers and will go into effect immediately. With respect to federal contractors, the Department of Labor will have 90 days to prepare regulations.
The Employment Non-Discrimination Act (ENDA) would end employment-based discrimination on the basis of sexual orientation or gender identity for workers outside of the federal government and for non-federal contract employees. ENDA passed in the Senate in November but remains stalled in the House. Following the Hobby Lobby decision, however, many leading LGBT-rights groups withdrew their support for ENDA as the legislation includes broad religious exemptions that many groups fear would unravel other workplace gains.
Media Resources: The White House 7/21/14; Huffington Post 7/21/14; Politico 7/21/14; Feminist Newswire 7/9/14, 6/17/14; GPO 12/16/02