Michael Hamar

Is an Executive Order Version of ENDA Possible?

Filed By Michael Hamar | February 03, 2011 8:30 AM | comments

Filed in: Politics
Tags: anti-gay bigotry, Barack Obama, Congressional Republicans, employment discrimination, ENDA

Here in Virginia, LGBT citizens can be fired at will from their jobs simply for being a sexual minority yourefired.jpg- it happened to me personally in the private sector in a law firm setting. And, as my client Michael Ware Moore can attest, it happens in the the realm of state employees as well despite the lies spun by The Family Foundation and its whore like minions in the Republican Party of Virginia.

Even today, a bill passed by the Virginia Senate that would protect state employees faces likely death in the House of Delegates. At the federal level, with the shift of control of U.S. House of Representatives to the GOP, hoped for relief from the federal level is unlikely. As a result, some advocates are now lobbying for an Executive Order that would limit federal contracts to companies that have LGBT non-discrimination policies in place.

If such an Executive Order were to be secured, it would be subject to revocation by a future president and would leave the vast majority of employees in gay hostile states with zero protection. Being a pragmatist, I'd accept an Executive Order as a partial stop-gap ENDA, but in the long term, we must demand passage of state and federal employment non-discrimination laws.

As for the question of whether Obama has the spine to issue such an order, I won't be holding my breath; as readers of my personal blog know, I sometimes refer to him as our faux "fierce advocate" when it comes to advocatinfg for pro-LGBT legislative initiatives. Here are highlights from the Washington Blade on the Executive Order effort:

LGBT rights supporters are pressing President Obama to issue a directive requiring the federal government to contract only with companies that have non-discrimination policies based on sexual orientation and gender identity protecting their employees.

Richard Socarides, president of Equality Matters, said an executive order for LGBT workplace protections "ought to be something the president seriously considers doing." "It's definitely an administrative device the president can use to help advance the cause of full equality, especially if the Congress is unwilling to take action," Socarides said.

Even though some companies don't contract with the federal government, Socarides said the directive would set an example for all U.S. businesses to comply with the new rules. An executive order on LGBT workplace discrimination could be a workable alternative now that Republicans have taken control of the House and cut into the Democratic majority in the Senate after the 2010 midterm elections, making passage of ENDA in Congress significantly more challenging, if not impossible.

Whether Obama would be willing to issue such an executive order remains to be seen. The president has called for passage of ENDA, but hasn't voiced an opinion about an administrative action instituting workplace protections for LGBT people.

Nan Hunter, a lesbian law professor at Georgetown University [and Bilerico contributor], said a directive protecting LGBT people would be a "terrific idea" because history has shown executive orders for non-discrimination often precede changes in law. "I think the pertinent piece in terms of the civil rights history is that the federal contractor requirements were put in place prior to the enactment of the statutes," Hunter said.

In 1964, President Johnson issued an executive order prohibiting most federal contractors from discriminating on the basis of race, color, religion, sex or national origin -- prior to the enactment of Title VII of the Civil Rights Act.

Hunter acknowledged that Obama may face political challenges in issuing such an order -- much like the difficulties Congress had in passing ENDA -- if the directive includes protections for transgender people.

According to the Williams Institute, the federal government contracts with 91,367 companies. The percent of the U.S. workforce that these companies employ is unknown. However, the executive order that Johnson issued in 1964, which covered most federal contractors, protected only an estimated 22 percent of the civilian workforce.

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The only thing Obama's done related to this, through XO, is to allow religious contractors to discriminate as they want. Not really the right direction.

Would this, or could this, also cover the employees of states, cities, and other local governments?

I'd be real surprised if Obama signed an Executive Order before the election. He might afterwards. I think he would include gender identity, because he wouldn't want the pushback from excluding trans people.

Would this, or could this, also cover the employees of states, cities, and other local governments?

In a word, no, not directly.

An "executive order" refers to the President as the Chief Executive Officer (CEO) of the Executive Branch of the federal government. Since state, metro and local govt employees are headed by governors, mayors and county leadership (usually elected boards of authority of some sort), a federal executive order cannot affect them directly -- and if attempted, a court challenge based on a "state's rights" argument would be almost certain to precipitate.

Of course, the feds can always cut off various categories of federal money if the receiving agency doesn't do "this" or "that" -- and that is what's being discussed here.

Bill Perdue Bill Perdue | February 4, 2011 7:41 AM

No. Neither likely or possible. A pipe dream for those shocked, at this late date, by Obama's relentless bigotry.

If he sabotaged same sex marriage in 2008 (-100) and court rulings against DADT in 2010 (-100) but did hand out Easter eggs - twice(!!!!) on the WH lawn (=.000002) what makes anyone imagine that he'd order an end to discrimination.

Considering the regulations recently issued by HUD, covering sexual orientation and gender identity in housing, I would say that an EEOC regulation doing the same could be accomplished. In regard to Professor Hunter's comment about transgender people, I note that the EEOC released a letter in 2007 stating that federal protection for transgender workers is possible, at least in some situations.