Amended Executive Orders expand employment discrimination prohibitions

By Kathy R. Neal

Since 1974 – just 10 years after Title VII of the Civil Rights Act of 1964 was passed – Congress has made repeated attempts to introduce and pass legislation that would have amended the landmark Act to prohibit discrimination in hiring and employment on the basis of sexual orientation. The latest bill to make its way to Congress, the Employment Non-Discrimination Act (ENDA), also added gender identity as a protected characteristic.

What Congress was not able to do in 40 years’ time, President Obama has effectively done – to a large extent – with the stroke of his pen. On July 21, 2014, the President amended two existing Executive Orders specifically pertaining to the hiring and employment practices of employers with ties to the federal government.

Originally signed by President Johnson in 1965, Executive Order 11246 prohibited employment discrimination by federal contactors and subcontractors on the basis of race, color, religion, sex or national origin. Last week, President Obama amended the order to include sexual orientation and gender identity as protected characteristics.

The other order, EO 11478, barred discrimination against employees of the federal government on the basis of race, color, religion sex, national origin, handicap (disability), and age when originally signed in 1969. President Clinton later amended the order to ban discrimination against federal employees on the basis of sexual orientation and status as a parent, and now President Obama’s amendment adds gender identity as a protected characteristic.

Interestingly, Obama’s amendments to the Executive Orders are narrower in scope, yet potentially broader in reach than had ENDA been passed. The amendment to EO 11246 will apply to approximately 24,000 companies designated as federal contractors whose 28 million workers make up a fifth of the nation’s workforce. EO 11246 applies to federal contractors or subcontractors with contracts worth $10,000 or more in a year – potentially affecting small businesses with less than 15 employees and religious organizations that receive federal funds, such as universities, hospitals and charitable organization. ENDA would have applied to all workers, not just federal contractors, but ENDA included a broad religious exemption that would have exempted religious institutions from its coverage – that is, religious institutions could have refused to hire employees who are homosexual or transgender. In contrast, the amendment to EO 11246 contains only limited exemptions for religious organizations that are hiring ministers or giving employment preferences to individuals of a particular religion.

At this time 18 states and the District of Columbia, plus many local governments, have inclusive nondiscrimination laws that prohibit discrimination on the basis of sexual orientation or gender identity. Many national companies likewise provide protection in employment for sexual orientation and gender identity. The Obama amendments expand that protection, albeit in a piecemeal manner.