Today, despite pressure from opposing political flanks and requests for exemption from religious leaders, President Barack Obama continued to make good on his promise to end anti-LGBT workplace discrimination.
This morning, the President signed an executive order which amended previous executive orders of Presidents Lyndon Johnson and Richard Nixon. The original executive orders banned workplace discrimination for federal employees and federal contractors based on race, color, religion, sex, national origin, disability, and age, as well as discrimination against federal employees based on sexual orientation.
President Obama’s order now makes it illegal to discriminate on the basis of sexual orientation or gender identity by federal contractors, and explicitly protects all federal employees from discrimination on the basis of gender identity. President Obama further directed the Secretary of Labor to prepare regulations to implement the change for federal contractors. Federal employees are protected immediately, while employees of federal contractors will likely not see the new protections until early next year, when the corresponding regulations are in place.
This order comes in the wake of Burwell v. Hobby Lobby, wherein the Supreme Court ruled that the Department of Health and Human Services’ regulations requiring employers to provide employees with no-cost access to certain contraceptives violated the Religious Freedom Restoration Act. Notably, while this executive order does not feature a religious exemption provision, another order, signed by President George W. Bush, permitting religiously affiliated federal contractors to hire on the basis of a prospective employee’s particular religion, remains unaffected.
It is estimated that the President’s order will affect almost twenty percent of the American labor force. However, without federal legislation by Congress, the President’s order does not and cannot create any new enforcement rights, such as a new cause of action before the Equal Employment Opportunity Commission. Nevertheless, one may file complaints under the grievance procedure of the federal contractor or agency where the employee works and, in certain cases, may appeal those claims to the Merit Systems Protection Board or the United States Office of Special Counsel.
It remains to be seen whether this executive order will spur formal federal legislation or whether it will be challenged for its lack of religious exemption. If you are a federal contractor, consult your attorney to ensure your office policies and procedures are always compliant.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
