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Calls Continue for Executive Order to Benefit LGBT Workers

by Justin Snow
Saturday Nov 23, 2013

With landmark legislation that would outlaw anti-LGBT workplace discrimination having hit a wall in the House of Representatives, the White House is once again deflecting calls for President Obama to use his executive authority to act.

For years now, the most LGBT-friendly administration in American history has voiced its opposition to an executive order that could be signed by the president today to prohibit federal contractors from discriminating on the basis of sexual orientation and gender identity.

The administration's argument has been a simple one: Obama supports passage of the Employment Non-Discrimination Act (ENDA), which would protect nearly all Americans from anti-LGBT workplace discrimination rather than just federal contractors. For advocates who have found an ally in the president on nearly every LGBT issue, the argument has been even simpler: You can support both.

"President Obama is empowered to sign a long-pending executive order that would protect the employees of federal contractors from discrimination on the basis of sexual orientation and gender identity," Human Rights Campaign President Chad Griffin said in a statement. "This order is not a silver bullet, and ENDA is vitally necessary after the order is signed. But the Human Rights Campaign has long argued that, by signing the order, President Obama can extend workplace protections to over 16 million American workers."

By signing such an executive order, which Metro Weekly reported in January 2012 has been given the okay by the Labor Department and Justice Department, Obama could end discrimination that is known to be occurring today.

Indeed, corporations such as ExxonMobil, which is one of the government's top 100 contractors, would be forced to adopt protections for LGBT employees. In May, for the 14th consecutive year, ExxonMobil shareholders voted overwhelmingly to reject expanding workplace protections to include sexual orientation and gender identity. That same month, Freedom to Work filed a complaint against ExxonMobil with the Illinois Department of Human Rights after conducting a test that allegedly showed the company gave preference to a non-LGBT applicant who was less qualified than an LGBT applicant.

In 2012, more than $505 million in federal contracts was awarded to the company. According to HRC's 2013 Corporate Equality Index, ExxonMobil earned a score of -25. Of all Fortune 500 companies, 88 percent have a nondiscrimination policy for sexual orientation and 57 percent have one for gender identity. Of the top 20 Fortune-ranked companies, which includes ExxonMobil, 13 received scores of 100 percent.

There is a long history of American presidents protecting federal contractors through executive action when Congress won't act. Companies doing more than $10,000 of work per year for the federal government are already prohibited from discrimination on the basis of race, color, religion, national origin or sex under an executive order first issued by President Lyndon Johnson.

And as advocates are eager to point out, Obama taking executive action to stamp out existing discrimination today doesn't just make sense, but was a promise he made as a candidate for president.

On Feb. 25, 2008, Obama filled out a presidential-candidate questionnaire for the Houston GLBT Political Caucus. Answering a number of questions about his positions on LGBT equality, in question No. 6 Obama was asked if he would support a nondiscrimination policy that includes sexual orientation and gender identity for federal contractors. Obama responded "Yes."

With ENDA having cleared the Senate with a bipartisan 64-32 vote earlier this month, Freedom to Work President Tico Almeida says Obama should "seize this moment to sign the executive order that will create enforceable workplace protections in almost one quarter of American jobs."

"Every day that passes without the executive order has a human cost to gay and transgender employees who fear for their job security, and the ongoing delays also costs taxpayers who should not have to subsidize harassment and discrimination," Almeida added. "I maintain faith the President will keep this campaign promise."

For more than a year, the White House has said they are studying the issue of LGBT workplace discrimination. The White House study was among the consolations made by White House senior adviser Valerie Jarrett to advocates in April 2012 when it was announced Obama would not sign the executive order. A White House spokesman provided no updates on the study Tuesday.

If the White House is reconsidering its position on executive action, it's dropping few hints. White House press secretary Jay Carney has taken a number of questions on the executive order before and after the Senate's ENDA vote. In each response, Carney has deflected and returned focus to those standing in ENDA's way.

"Basic equality is fundamental to who we are as a nation," Carney told reporters. "And our history is, in part, a story of efforts and struggles to reach that ideal where equality is not only an aspiration but a fact. The Employment Non-Discrimination Act is a piece of that story, and it ought to be passed by Congress, passed by the House as it was by the Senate, because this President will sign it into law."

With House Speaker John Boehner, who voted against a non-trans-inclusive version of ENDA in 2007, appearing entrenched in his opposition to ENDA on the grounds that "people are already protected in the workplace" and ENDA would result in frivolous lawsuits, the White House's response has been sharp.

"[T]hose who oppose passage of ENDA in the House and throw up a lot of reasons why, the reasons they cite are reasons that we've heard in the past in opposition to seminal civil rights legislation," Carney said. "And those who opposed previous civil rights legislation were wrong, and history has proved them wrong. And those who oppose passage of ENDA are wrong, and history will prove them wrong."

But on the executive order, to which the White House's opposition has long been a point of frustration and puzzlement for advocates, the next steps of action do not rest with the speaker.

"We urge the House of Representatives to pass ENDA immediately," said HRC's Griffin, "and we call on President Obama to send a clear message in support of workplace fairness by signing this executive order."

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