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Reports by LGBT news organizations anticipate President will expand E.O. 11246 to cover sexual orientation/gender identity discrimination, but Obama administration currently silent

March 8th, 2012  |  Cynthia L. Hackerott

Two LGBT news publications are reporting that President Obama is planning to, or at least seriously considering, expanding Executive Order (E.O.) 11246 – which currently covers race, color, sex, religion, and national origin – to include sexual orientation and gender identity. However, the reports indicate that the White House has been silent as to whether such a plan is in the works, and has not responded to inquiries in this regard.

President Lyndon B. Johnson issued the initial version of E.O. 11246 in September 1965. Currently, the order prohibits federal contractors and federally-assisted construction contractors and subcontractors, with more than $10,000 in government contracts annually, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. The Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) enforces E.O. 11246, as well as Section 503 of the Rehabilitation Act of 1973 (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). E.O. 11246 also requires covered federal contractors and sub-contractors to implement affirmative action programs as to race, color, religion, sex, and national origin, and Section 503 and VEVRRA require similar affirmative action programs with respect to disability and status as a protected veteran.

Recently, both Metro Weekly (on January 31 and February 4, 2012) and the Washington Blade (on February 1 and February 15, 2012) have reported that multiple sources state this proposed expansion of the Executive Order has been approved by both the Labor and Justice Departments, and that this proposal is currently at the White House. So far, according to the reports, the Departments of Labor and Justice, like the White House, have declined to comment.

The Washington Blade reports that Tico Almeida, president of Freedom to Work, and one of the chief advocates calling for the order, has meet with OFCCP Director Patricia Shiu and OFCCP  staffers “to advocate for the executive order.”

Currently, no federal law protects against discrimination in the workplace on the basis of sexual orientation or gender identity. Longstanding efforts to pass the Employment Non-Discrimination Act (ENDA) have repeatedly stalled in Congress. 

Metro Weekly further reports that the House’s longtime lead sponsor of ENDA, Rep. Barney Frank (D-Mass.) has received a lengthy memo, written by the Center for American Progress and the Williams Institute, laying out the case for either an expansion of E.O. 11246 or a separate, new E.O. that would address only sexual orientation and gender identity discrimination. LGBT advocates, including Almeida, presented the memo to Diego Sanchez, Frank’s senior policy advisor, on January 13, 2012, during a meeting to discuss the proposal in depth, and Frank has read the memo, the report states.

However, it is not clear whether the anticipated expansion of E.O. 11246 would only require non-discrimination or whether it would also require implementation of affirmative action programs on the basis of sexual orientation and gender identity. Metro Weekly reports that the memo states such an expansion “’could result in a legal challenge that attacks the entirety of EO 11246’” and would lead to questions about whether the expansion would “’trigger affirmative action and data collection requirements.’” Those issues could be avoided if a new executive order is issued, but a new order “’may attract more political attention than would amending the existing order,’” according to Metro Weekly’s account of the memo.

The reports also pointed out that it would take at least six months, likely more, for the necessary implementing regulations to be proposed, subject to public comment, and then finalized. Thus, the timing of this anticipated action could be crucial, depending on the outcome of this election year. Of course, election year politics could also be a factor in when the President might take this action, if he indeed does so.