On July 21, 2014, President Obama signed an Executive Order further amending two existing Executive Orders (11246 - Equal Employment Opportunity and 11478 - Equal Employment Opportunity in the Federal Government) prohibiting federal contractors from discriminating against employees based on sexual orientation or gender identity – a move that reportedly affects roughly 28 million workers, or about one-fifth of the nation’s workforce – and banning discrimination against federal employees based on their gender identity.
Executive Order 11246, issued by President Lyndon B. Johnson, prohibits federal contractors from discriminating “against any employee or applicant for employment because of race, color, religion, sex, or national origin.” President Obama’s Executive Order adds sexual orientation and gender identity to the list of protected categories. President Obama’s Executive Order does not allow for any new exemptions and leaves intact President George W. Bush’s Executive Order 13279, which permits religiously affiliated contractors to favor individuals of a particular religion when making employment decisions. Order 13279 specifies 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.” Executive Order 11246 governs over only federal contractors and federally-assisted construction contractors and subcontractors who do over $10,000 in government business in one year.
Executive Order 11478, issued by President Nixon, bars discrimination against federal employees on the basis of race, color, religion, sex, national origin, disability, and age, and was previously amended by Executive Order 13087, issued by President Clinton, to include sexual orientation. Now, President Obama’s Executive Order adds gender identity to the list of protected categories.
Order 11478 affecting federal employees takes effect immediately, while Order 11246 affecting federal contractors will take effect early next year after the Department of Labor promulgates rules pursuant to the Order.