A One-Two Punch for Worker Protection

Both Federal Law and Executive Order Are Necessary

Jeff Krehely and Crosby Burns argue that gay and transgender workers need both a federal law and contractor executive order to ensure workplace fairness.

At a time when many families are struggling economically, recent research and data show that gay and transgender Americans are far too often forced out of a job and into the ranks of the unemployed due to workplace discrimination. To help solve this problem and put gay and transgender workers on equal footing with others in the workforce, federal policymakers should take two different steps.[1]

First, Congress could pass the Employment Non-Discrimination Act, or ENDA, into law. ENDA would prohibit most public and private employers from discriminating on the basis of sexual orientation and gender identity. It is mirrored to some extent on the protections and recourses that Title VII of the Civil Rights Act of 1964 provides to workers on the basis of race, color, religion, sex, and national origin.

Second, President Barack Obama could use his executive authority to require federal contractors to not discriminate on the basis of sexual orientation and gender identity. Currently, Executive Order 11246, or EO 11246, prohibits federal contractors from discriminating on the basis of race, color, religion, sex, and national origin.

Beginning with Franklin Roosevelt, presidents from both political parties have issued executive orders barring federal contractors from discriminating against their employees. The premise of these orders is simple: The federal government should not pay taxpayer dollars to companies that discriminate. Discrimination is bad for employees and it’s bad for employers, and the federal government should only be investing in the most economically efficient contractors in the market.

And if history is any guide, an executive order prohibiting discrimination based on sexual orientation and gender identity would lay the groundwork for congressional passage of ENDA. Following executive orders that Presidents Eisenhower and Kennedy issued requiring contractors to not discriminate based on race and color, for example, Congress subsequently passed the Civil Rights Act, which continues to serve as the bedrock of legal protections afforded to the American workforce today.

ENDA’s hopes for passage in the near term look bleak given the political climate in Congress. But even if Congress were to defy the political odds and pass ENDA today, an executive order for federal contractors would still be needed to level the workplace playing field for gay and transgender workers.

First, ENDA (as currently introduced in Congress) applies to employers with 15 or more employees, which is the same threshold that applies to Title VII. The existing contractor executive order, EO 11246, however, applies to businesses of any size that receive a government contract in excess of $10,000. So a federal contractor executive order that includes sexual orientation and gender identity would extend workplace protections for gay and transgender workers in smaller companies that are doing business with the federal government who would otherwise not be covered under ENDA. A CAP-commissioned poll from late last year showed that a majority of small business owners said that they support these types of policies and that they would not be a financial burden to implement or maintain.

Second, a contractor executive order would ensure that gay and transgender people have the same type of protections currently afforded to women, people of color, and others under EO 11246. Under the proposed ENDA, individuals and groups of individuals must come forward to file discrimination complaints with the Equal Employment Opportunity Commission (which people can do now thanks to Title VII for discrimination based on race, color, religion, sex, and national origin). But people discriminated against by federal contractors based on those five characteristics can also file complaints through the Office of Federal Contract Compliance Programs, or OFCCP, which enforces EO 11246.

EO 11246 provides an additional level of protection because OFCCP conducts routine, proactive compliance evaluations—which are not prompted by individual complaints—to ensure federal contractors are not discriminating against their employees. These compliance evaluations are an important part of combating employment discrimination. Statistics from OFCCP show that EO 11246 has helped minimize discrimination for women and people of color in particular, even with Title VII in place. Likewise, an executive order prohibiting discrimination on the basis of sexual orientation and gender identity would likely help combat discrimination in ways that ENDA would not.

Importantly, these compliance evaluations are not burdensome on federal contractors considering that more than 99 percent of contractors met EO 11246’s requirements in fiscal year 2010. In that year (the year for which we have most recent data) OFCCP conducted compliance evaluations on 4,960 contractors based on potential evidence of discrimination. Of those contractors, they found only 1,071 contractors in violation of EO 11246. So out of 174,703 total federal contractors that year—which is likely an underestimate, due to the way the data are collected and classified—only 0.61 percent were found to be in violation of OFCCP.

Congress should pass ENDA now. But even if it did, there would still be a need for an executive order that extends existing workplace protections at federal contractors to gay and transgender workers. These two steps are needed for gay and transgender people to be on truly equal footing with all others in the American workforce.

Jeff Krehely is Vice President of the LGBT Research and Communications Project and Crosby Burns is a Research Associate for LGBT Progress at the Center for American Progress.

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1. In this column, “gay” is an umbrella term used to describe individuals that identify as lesbian, gay, or bisexual.

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Jeff Krehely

Former Senior Vice President, Domestic Policy

Crosby Burns

Policy Analyst