Why it matters: President Barack Obama has announced he will issue two more employment-related executive orders – following his increase to the federal minimum wage earlier this year – one banning federal contractors from engaging in discrimination on the basis of sexual orientation or gender identity and a second prohibiting discrimination against federal employees based on gender identity. Announcing his plans, the President said his administration has “gone further in protecting the rights of lesbian and gay and bisexual and transgender Americans than any administration in history.” In other employment news from the federal government, the Department of Labor (DOL) announced a proposed rule adopting the “state of celebration” interpretation of same-sex couples for purposes of the Family and Medical Leave Act (FMLA). Under the new rule, employees would be allowed to take FMLA leave to care for a same-sex spouse regardless of the law of the state where the worker resides as long as the couple was validly married in a jurisdiction that legally recognizes same-sex marriage. The practical impact of the orders will be limited, as many states and local jurisdictions already have laws in place providing such protections, and many employers have established non-discrimination policies that include such individuals. But taken together with the DOL’s proposal, the changes reflect a major development for gay rights.

Detailed Discussion

With federal legislation prohibiting discrimination against lesbian, gay, bisexual, and transgender (LGBT) individuals languishing in Congress, President Obama has taken action. The President announced his intention to sign an executive order to make it illegal for companies with federal contracts to fire or decline to hire employees based on sexual orientation and gender identity.

Just a few weeks later, it was announced that a second executive order was in the works, this one banning discrimination against federal employees based on gender identity.

Although the Employment Non-Discrimination Act (ENDA) passed the Senate, it stalled in the House. Currently, laws recognizing sexual orientation as a protected category can be found in local jurisdictions, 21 states, and the District of Columbia. Eighteen states and D.C. prohibit gender identity discrimination.

Gay rights advocates hailed the order, which the Human Rights Campaign estimated would apply to about 20 percent of the American workforce.

But House Speaker John Boehner (R-Ohio) threatened legal action over the President’s use of executive orders, arguing that the multiple orders are encroaching on the powers of the legislative branch. Rep. Boehner said he will have members of the House vote later this year on whether or not to sue the President. President Obama has issued several executive orders already this year, including an increase to the federal minimum wage.

In other gay rights news, the DOL released a proposed rule changing the agency’s interpretation of validly married same-sex couples from a “state of residence” to a “state of celebration.” Previously, a same-sex spouse had to live in a state that recognized his or her marital status to request leave under the FMLA.

Going forward, residence will be irrelevant. As long as the couple was validly married in a state that legally recognizes same-sex marriage, either spouse may request leave under the FMLA.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” DOL secretary Thomas Perez said in a statement about the change. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

Under the proposed change, the definition of spouse would be amended to include “an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.” By updating the definition, the DOL stated that same-sex spouses will now be able to take qualifying exigency leave due to a spouse’s military leave or take military caregiver leave for their same-sex spouse who is a covered service member.

The proposal comes as no surprise in light of last year’s U.S. Supreme Court decision in U.S. v. Windsor, where the high court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for purposes of federal law.

Comments on the proposed rule will be accepted by the agency until August 11.

To read the DOL’s notice of proposed rulemaking, click here.