LGBT Workers Gain Rights Under Presidential Executive Order
July 28, 2014
Studies show that more than 40 percent of lesbian, gay, and bisexual workers have suffered employment discrimination due to their sexual orientation. Moreover, 90 percent of transgender employees have experienced harassment, mistreatment, or discrimination the workplace.
President Obama has once again extended the reach of Executive power when he recently signed an Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity. The Order also bolsters anti-discrimination laws for federal workers by adding gender identity to the list of protected categories, which already includes sexual orientation.
According to Corporate Counsel, the Executive Order will impact an estimated 24,000 companies with federal contractor designation, which employ approximately one-fifth of U.S. workers. These employers will now need to review their anti-discrimination policies and practices to ensure compliance with the new mandate.
There are presently no exemptions for religious organizations.
For private employers that do not transact with the federal government, federal law does not currently prohibit discrimination against lesbian, gay, bisexual, and transgender (LGBT) workers. The Employment Non-Discrimination Act (ENDA), which would include such protections, has been pending in Congress for several years. While it successfully cleared the Senate in 2013, the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby has generated a new round of debate regarding the legislation’s broad religious exemption.
To some degree, the Executive Order may be unnecessary as many states (and, increasingly, municipalities) have such laws already in place. For instance, the New Jersey Law Against Discrimination includes both “affectional or sexual orientation” and “gender identity and expression” as protected classes. Accordingly, in New Jersey, any discrimination and/or retaliation against LGBT workers would be proper grounds for an employment lawsuit.
Even without a governmental mandates, an increasing number of U.S. companies include protections for LGBT workers in their discrimination and harassment policies. According to the White House’s fact sheet on the new executive order, 91percent of Fortune 500 companies already prohibit discrimination based on sexual orientation and 61 percent prohibit discrimination based on gender identity.
If you have questions about the executive order or want to ensure that your business is in compliance, please contact me, Gary Young, or the Scarinci Hollenbeck Labor and Employment attorney with whom you work.