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As ENDA moves forward in the Senate, White House reiterates statements that Executive Order to ban LGBT discrimination by federal contractors is not forthcoming

July 23rd, 2013  |  Cynthia L. Hackerott

Recent action in the Senate has sparked renewed inquiries into the status of a possible executive order (E.O.) banning discrimination against LGBT employees by federal contractors, yet a White House spokesman reaffirmed this month statements made earlier this year that such an E.O. will not be issued at this time. Despite reports last year that the Obama Administration has considered expanding E.O. 11246 – which currently covers race, color, sex, religion, and national origin – to include sexual orientation and gender identity, White House Press Secretary Jay Carney confirmed on July 10, 2013 that no such order is forthcoming and reiterated his earlier statements that the President prefers legislative, rather than executive, action on this front.  Currently, no federal law protects against discrimination in the workplace on the basis of sexual orientation or gender identity.

Earlier that day, the Senate Committee on Heath, Education, Labor and Pensions (HELP), by a 15-7 vote, reported out to the full Senate the Employment Non-Discrimination Act of 2013 (ENDA), a bill that would bar employment discrimination based on actual or perceived sexual orientation or gender identity.  The HELP Committee’s markup of the bill (S. 815) was its first action on the measure since the original bill was introduced in 2002. ENDA was introduced in the current legislative session by Senator Jeff Merkley (D-OR) on April 25, 2013. That same day in the House Representatives, Jared Polis (D-CO) introduced a companion bill (H.R. 1755) that was referred to the House Subcommittee on the Constitution and Civil Justice on June 14, 2013.

Background. In early 2012, multiple press reports indicated that the President was contemplating expanding E.O. 11246 to include sexual orientation and gender identity. The Department of Labor’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 subcontractors 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.

It was not clear whether any potential 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. According to the reports from last year, the President has also considered, as an alternative to expanding E.O. 11246, issuing a separate, new executive order to address sexual orientation and gender identity.

Yet, the White House had been silent on this topic until April 12, 2012 when Carney confirmed press reports that the President would not, at least for the time being, sign such an executive order. “We are not approaching this at this time through executive authority, through an executive order.  We are, however — in another demonstration of the President’s firm commitment to securing equal rights for the LGBT community — aggressively pursuing passage of ENDA,” Carney said.

On February 14, 2013, 37 Senators signed on to letter urging President Obama to issue an Executive Order barring federal contractors from discriminating on the basis of sexual orientation and gender identity. On March 20, 2013, a similar letter was sent to the President by 110 House members.

Recent press briefing. The progression of ENDA in the Senate on July 10, 2013, prompted renewed questioning on the issue of an LGBT executive order later in the day at a White House press briefing. “We welcome the passage by the committee of the Employment Non-Discrimination Act, the bipartisan support that it saw, the Republican senators who voted for it — Senator Kirk, who was a leader in the effort,” Carney said in response to a question about White House plans regarding ENDA.  “This reflects the strategy the President has long believed is the right one when it comes to these matters, and we’ll continue to press for broader support in the Senate and then in the House on this issue,” he noted.

“Our position on the executive order hasn’t changed,” Carney stated in apparent reference to his April 2012 statements. “[O]ur position on the executive order has been coupled with our belief that the best way to do this is to pursue legislation that’s broad and comprehensive. And that’s what ENDA is,” Carney continued, indicating that the progress in the Senate earlier that day was evidence that progress on the legislative front could be achieved.