On Thursday, the ACLU, as well as partner organizations, will speak at a congressional briefing hosted by Rep. Frank Pallone (D-N.J.) on the subject of sexual orientation and gender identity discrimination in the workplace and the steps that can be taken to prevent such discrimination.
The ACLU has long fought for passage in Congress of the Employment Non-Discrimination Act, legislation that would prohibit employment discrimination based on sexual orientation and gender identity in most American workplaces. ENDA will allow all American workers who stand side-by-side at the workplace and contribute with equal measure in their jobs to also stand on equal footing under the law. However, the current political reality is that ENDA cannot pass this Congress. This does not, however, close off all avenues for addressing the underlying problem of workplace discrimination against LGBT Americans.
President Obama has the authority to issue an executive order to ensure that companies that contract with the federal government and receive federal tax dollars do not discriminate against applicants and employees based on their sexual orientation or gender identity.
Nearly 71 years ago, on June 25, 1941, President Roosevelt signed Executive Order, No. 8802, prohibiting federal defense contractors from discriminating based on race, religion, color, or national origin. This was one of the first national victories of the modern civil rights movement.
In subsequent executive orders, President Roosevelt covered all federal contracts, including non-defense contracts, and Presidents Truman, Eisenhower, Kennedy, and Johnson expanded the protections. The current executive order has been in effect since 1965. Continuing this important legacy, in 1998, President Clinton signed Executive Order No. 13087 to prohibit discrimination based on sexual orientation in the competitive service of the federal civilian workforce; and in 2010, President Obama explicitly banned gender identity discrimination in federal workplaces.
The ACLU views an executive order as the single most important step that President Obama could take this year to eradicate anti-LGBT discrimination from American workplaces. 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 impact of such an executive order would be immense, and provides the opportunity to create a tipping point moment with employment protections based on sexual orientation and gender identity. An executive order on contractors, when combined with existing workplace protections provided by many state laws and by 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.