Earlier this week, press accounts quoting White House officials reported that President Obama is preparing to issue an Executive Order that would prohibit federal contractors from discriminating on the basis of sexual orientation or gender identity. This would be the latest in a series of Orders intended to circumvent Congressional inaction on a number of the President’s labor priorities.
Specifically, the House has failed to act on the Employment Nondiscrimination Act (EDNA), which would impose these antidiscrimination protections on employers in general. The new Executive Order would be patterned on EDNA, but would only impact federal contractors in states and municipalities that have not already adopted similar measures. The Order could be an attempt by the White House to place political pressure on the House to act on EDNA prior to midterm elections later this year.
Federal contractors tend to be larger employers, and most large companies already have internal policies that prohibit discrimination on the basis of sexual orientation or gender identity regardless of applicable law. Even if the direct number of affected employers is small, the Order should result in adoption of regulations by the Department of Labor that will implement its directions. These rules will deal with important definitions of who is actually protected under the law, and the scope of any exemption for religious-based employers. Employers should monitor development of these rules given that they could form the basis for those adopted if EDNA is eventually passed.
The White House did not indicate a timetable for issuance of the Executive Order or its effective date.