On July 21, President Obama issued an Executive Order amending Executive Order 11246 (EO 11246) to include “sexual orientation” and “gender identity” in the litany of covered protected characteristics. The new Executive Order similarly amends a prior order that applies to employment with the federal government. The new Executive Order requires the Department of Labor (DOL) to issue implementing regulations within 90 days of July 21 that will effectuate the changes to EO 11246. The amendment to EO 11246 is effective immediately, but will only apply to contracts entered into on or after the effective date of the final regulations promulgated by DOL. Federal contractors should pay careful attention to the rule making process. Based on the final regulations promulgated in September 2013 regarding the recruitment and employment of protected veterans and individuals with disabilities (IWD), the federal contractor community could be faced with the following new requirements:
- An obligation to solicit sexual orientation and gender identity from applicants and new hired employees
- An obligation to solicit sexual orientation and gender identity from all incumbent employees
- A “hiring benchmark” for LGBT employees
- A utilization goal for LGBT employees
- An obligation to undertake outreach efforts to LGBT organizations
- An obligation to conduct an LGBT adverse impact analysis on hiring, promotion and terminations
Federal contractors, which are currently busy modifying their applicant tracking software and HRIS to accommodate the new protected veterans and IWD regulations, may have to do the same thing once the LGBT regulations are finalized. Unless already included, contractors should also immediately amend their equal employment opportunity policies to specifically include sexual orientation and gender identity. We will keep you up to date on developments as they occur.