The White House on Monday announced that President Obama will soon issue an Executive Order (E.O.) banning certain federal contractors from discriminating against their employees on the basis of sexual orientation or gender identity. The E.O. is a means of enacting – if only for federal contractors – a scaled-down version of the Employment Nondiscrimination Act (ENDA), which has stalled in Congress. ENDA would make it unlawful for most private employers to refuse to hire or discriminate against individuals on the basis of actual or perceived sexual orientation or gender identity. In November 2013, the Senate passed ENDAwith an amendment related to the bill’s exemption for religious entities. The House has not taken up ENDA, nor is it expected to this year.
The E.O. will not likely have a significant impact on many federal contractors. To date, 21 states and the District of Columbia already have laws banning employment discrimination based on sexual orientation; 18 states and D.C. have laws also prohibiting discrimination based on gender identity. In addition, several cities have enacted local laws/ordinances banning such discrimination. Moreover, a majority of Fortune 500 companies have non-discrimination policies covering sexual orientation and/or gender identity as protected categories.
The E.O. follows several employment-related initiatives enacted at the Executive level in recent months. In February 2014, the President issued an E.O. setting the minimum wage of certain federal contractors to $10.10 per hour starting January 1, 2015. One month later, the White House issued a memorandum directing the Department of Labor to revise its “white collar” overtime exemption regulations.
On April 8, 2014, the President signed an E.O -- Non-Retaliation for Disclosure of Compensation Information – making it unlawful for contractors to retaliate against employees who disclose their pay information. The same day the President issued a memorandum – Advancing Pay Equality Through Compensation Data Collection – directing the Department of Labor to issue regulations within 120 days that will require federal contractors and subcontractors to submit to the DOL summary data on the compensation paid their employees, including data by sex and race.
President Obama had stated that if Congress does not move on various pieces of legislation, he would use his Executive powers to advance certain aims. The most recent E.O. is considered yet another step in this “year of action.”