Yesterday, President Obama signed an Executive Order prohibiting federal contractors from discriminating against employees based on gender identity and sexual orientation. Specifically, the Executive Order amends Executive Order 11246 to add gender identity and sexual orientation to the protected categories listed in that EO. The Executive Order further amends Executive Order 11478, which requires the federal government to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, or age, and to promote equal employment opportunity through a continuing affirmative program in each executive department and agency. Executive Order 11478 was amended by Executive Order 13087 to add sexual orientation to the list of protected categories.
Executive Order 11246 prohibits federal contractors and federally-assisted construction contractors and subcontractors, who do over $10,000 in government business in one year, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. The Executive Order also requires covered government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.
The amendments to Executive Order 11246 only apply to federal contractors and subcontractors who have covered federal contracts entered into on or after the effective date of the rules promulgated by the Secretary of Labor implementing the Executive Order that President Obama issued today. Those rules have not yet been issued. Currently, federal law does not prohibit discrimination by private employers based on sexual orientation or gender identity, although a number of state laws prohibit such discrimination.
The White House Fact Sheet on the new Executive Order states that it does not allow for any exemption beyond the one added by Executive Order 13279, issued by President George W. Bush, which permits religiously affiliated contractors to favor individuals of a particular religion when making employment decisions, by specifying that Executive Order 11246, "shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order." Additionally, under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit.
It is unclear whether the Executive Order will impose new affirmative action requirements on federal contractors. The Secretary of Labor is required to prepare regulations implementing the provisions of the Executive Order within 90 days, which will provide further guidance on the obligations imposed by the Order.