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Prohibiting discrimination

published in The Journal Record | July 31, 2014

By Kathy R. Neal

Title VII of the Civil Rights Act of 1964, which applies to employers with 15 or more employees, prohibits discrimination on the basis of sex in the workplace.

It does not, however, prohibit discrimination on the basis of sexual orientation or gender identity, and recent efforts to pass the Employment Non-Discrimination Act, a bill that would have added sexual orientation and gender identity as protected characteristics, have been unsuccessful.

Last week, President Barack Obama amended two executive orders that accomplish the same end result as ENDA.

Executive Order 11246, which previously prohibited employment discrimination by federal contractors and subcontractors on the basis of race, color, religion, sex or national origin, was amended 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, disability, and age when originally signed in 1969. President Bill 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.

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.