The White House announced last week that President Barack Obama is preparing to issue an executive order prohibiting government contractors from discriminating against employees or job applicants on the basis of sexual orientation or gender identity. Federal contractors are already barred from discriminating on the basis of race, religion, gender or national origin. The expected executive order will add sexual orientation and gender identity to the list of protected categories.
The President’s order will enact protections similar to those contained in the proposed Employment Non-Discrimination Act (“ENDA”), which has now stalled in Congress. If enacted, ENDA would prohibit workplace discrimination against individuals on the basis of sexual orientation or gender identity, but would apply to all employers with 15 or more employees, not just federal contractors. The Senate passed ENDA in late 2013 (as previously reported here), but the House has not yet taken up the bill, and is unlikely to do so this year.
The planned executive order reflects the continued expansion of workplace protections for LGBT employees nationwide. Almost half the states and the District of Columbia have laws prohibiting employment discrimination on the basis of sexual orientation, and many of these states also protect employees from discrimination on the basis of gender identity. A number of cities have also enacted laws or ordinances banning this type of discrimination. And only a year ago, the U.S. Supreme Court struck down the definition of marriage as being between one man and one woman under the federal Defense of Marriage Act in U.S. v. Windsor.
The continued expansion of more formal workplace protections for LGBT individuals provides a reason for employers to reexamine employment policies that may be affected, including equal employment opportunity policies, family and medical leave policies, and bereavement provisions. While many employers have already taken steps to formally protect their LGBT employees, these employers should regularly review their policies to ensure that they reflect the latest developments in the law.