President Obama has scored great success with his slogan of "We Can't Wait!" He has moved forward with over 20 regulatory and executive measures designed to address the important issues facing our country that can't be addressed legislatively because of our "Just Say No" Congress.
One of the measures now being contemplated is an "ENDA Executive Order" barring discrimination based on sexual orientation or gender identity among federal contractors. It would require organizations doing business with the federal government to have a non-discrimination policy, and to enforce it, and violations would be prosecuted by the Labor Department's Office of Federal Contract Compliance Programs (OFCCP), headed by Patricia Shiu.
ENDA, the Employment Non-Discrimination Act, a bill first introduced in 1994, and in every Congress since, that would have created a non-discrimination policy for the whole country, prohibiting discrimination based on sexual orientation or gender identity, died an early death back in November 2009, despite the fact that it had enough votes in the House, and the Senate was off by just a few votes that could have benefited from the White House stepping in.
But the White House didn't step in, and ENDA died. The White House has a chance to step in now with an Executive Order that would cover over $300 billion in federal contracting, 22% of the US workforce, and 26 million employees, and many major US employers in construction and manufacturing, Big Pharma, and the service sector, including all the non-ENDA states like Texas, Florida, and Alabama. There are many reasons to do this, not the least of which are the political rewards of showing your mojo. Here's a petition with over 100,000 signatories that you can sign, noting that over 70% of Americans, including a majority of Republicans, support this order. You should also take a look at the "Freedom To Work" website, an organization which has been effectively championing this campaign.
As I was told back in 2010 by Melody Barnes, President Obama's Assistant to the President and Director of the White House Domestic Policy Council, at a briefing on LGBT issues held at the White House in the summer of 2010, President Obama's role was to follow the leadership in Congress. At that time, I asked "Is this a strong Administration that controls the agenda, or a weak Administration that keeps its head down and does what it is told?" I think we all know what the answer was at that time. Of course, the White House did later step in to get those last few votes -- on the repeal of Don't Ask Don't Tell -- when it became glaringly obvious there were more than enough votes, and after Lt. Dan Choi and other protesters from GetEqual chained themselves to the White House fence a few times, and it became clear the bill was moving forward with or without the President.
President Obama has since realized that these advisors who suggested that he keep his head down and do what he was told by Congressional leaders were not pursuing a winning strategy. Thankfully, he has shaken up his staff, stepped up to the plate, has publicly and visibly pushed back at the "do-nothing" Congress, and declared his willingness to take regulatory and executive action to move the ball forward. In my opinion, it is this, more than anything, that has resulted in his recent rise in the polls, as the public hears about the actions he is taking to make a difference on jobs, the housing market, and regulatory reform. Sure, the hopeful signs in the economy are also helpful, but the public credits the President because he is seen to be taking action.
It is time for the President to apply this to new political philosophy to workplace civil rights. He has already done it successfully on LGBT housing rights, putting in place regulations that prohibit LGBT discrimination in housing that receives federal money. He has received no public pushback on that important move. Thus, both he, and we, know it can be done successfully.
Many studies have shown that employment discrimination harms the labor market, and that keeping talent from jobs due to irrelevant factors holds the economy back. Discrimination is a jobs issue, and with millions of LGBT people being held back due to discrimination. As we've discussed on Bilerico recently, this order is supported by major LGBT advocates and is an important step forward. As a professor who is also a lawyer, I am currently prosecuting a lawsuit against a federal contractor who discriminated against an employee whose contract was terminated because of gender identity. Although the facts of the case to date indicate that the employer's decision was clearly based on gender identity, we face an uphill legal battle because the application of gender-identity non-discrimination law to this employer is in doubt. That is not only unfortunate for my client, but also for qualified transgender employees across the country.
The proposed ENDA Executive Order has already moved forward though a number of the bureaucratic steps necessary to vet it, including clearance by the Labor and Justice Departments. It is ready to go, and it would help qualified transgender employees across the country who, according to the recent Task Force/NCTE study, face double the rate of unemployment of the general population, 26% of whom were fired due to gender identity bias, 44% were underemployed, and 50% of whom faced harassment and abuse on the job.
The Labor Department has collected many millions of dollars in back-wages in the past three years for African-Americans, Latinos, women, and other groups who have faced workplace discrimination. They can't do these cases for LGBT people yet. But soon, if President Obama signs the order, they'll be able to do so.
Mr. President, please sign the ENDA Executive Order.