Late Wednesday afternoon, it was reported that the Obama administration had made the decision to delay issuing an executive order to ensure that federal contractors receiving tax dollars do not discriminate against applicants and employees based on their sexual orientation or gender identity.
The decision to delay issuing the executive order is extremely disappointing. The reality remains that it is legal to fire or refuse to hire someone based on their sexual orientation in 29 states. Those who are transgender can be fired or denied employment solely based on their gender identity in 34 states. The costs of LGBT workplace discrimination are especially heavy on gay and transgender people of color, who have been shown to face disproportionately high rates of unemployment and poverty.
An executive order on contractors, when combined with existing workplace protections provided by existing state laws and federal law for federal workers, would likely mean that for the first time in history, more than half of all American workers would have legally binding workplace rights. And with federal contractors employing people in all 50 states, there would be at least some workplaces in every state where employees would have legally binding protections against discrimination.
In response to the decision to delay the order, the White House said:
The president is dedicated to securing equal rights for LGBT Americans and that is why he has long supported an inclusive Employment Non-Discrimination Act (ENDA), which would prohibit employers across the country from discriminating on the basis of sexual orientation and gender identity.
The ACLU is also fully committed to working to see ENDA enacted into law. However, President Obama could and should follow a bipartisan tradition that dates back to President Franklin Roosevelt and the early beginnings of the civil rights movement by using his executive authority to require nondiscrimination on the part of federal contractors on the basis of sexual orientation and gender identity.
In addition, as coalition colleagues at the Center for American Progress point out, even if ENDA were to become law tomorrow (very unlikely given the current political environment), there will still be a need for this executive order, which, when issued, will ensure that gay and transgender individuals have the same types of employment protections currently afforded to women, people of color, and others.
Further, all of the congressional champions of ENDA have called on President Obama to issue the executive order, including House Minority Leader Nancy Pelosi (D-Calif.) and the four openly gay and lesbian cochairs of the Congressional LGBT Equality Caucus.
Amazingly, President Obama has actually already endorsed the order. Metro Weekly reported on March 8 that then-candidate Sen. Obama told the Houston GLBT Political Caucus in a written survey in February 2008 that he would support a "formal written policy of non-discrimination that includes sexual orientation and gender identity or expression…for all Federal contractors." Additionally, in an interview with the Advocate published on December 22, 2010, President Obama said, in response to a question about employment nondiscrimination protections for LGBT workers languishing in Congress:
…there are still a lot of things we can do administratively even if we don't pass things legislatively. So my ability to make sure that the federal government is an employer that treats gays and lesbians fairly, that's something I can do, and sets a model for folks across the board.
Then-Sen. Obama was right in 2008. He was right again in 2010. It is time for President Obama to issue this executive order.
Overwhelming majorities of Americans support federal policies that advance workplace fairness for LGBT people — including majorities of self-identified Democrats, Republicans, and Independents. It's not only the right and just thing to do; it's also the politically popular thing to do! The ACLU continues to view the executive order as the single most important step that President Obama could take this year to eradicate LGBT discrimination from workplaces across the country. There is no need for delay. LGBT workers who are forced to hide their true selves and deny their families and loved ones at work for fear of losing their jobs can't wait.
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