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Secretary Perez says Labor Department “contemplat[ing]” possible LGBT executive order; WH says it’s still “hypothetical”

February 14th, 2014  |  Cynthia L. Hackerott

A possible executive order (E.O.) banning discrimination against LGBT employees by federal contractors is “an issue that [the Labor Department] continue[s] to contemplate and work on,” said Secretary of Labor Thomas E. Perez at a White House press briefing on February 12, 2014. However, Perez declined to comment on whether the Labor Department would be responsible for implementing such an order. Perez joined White House Press Secretary Jay Carney at the briefing to discuss President Obama’s signing later that day of an executive order to raise the minimum wage for federal contractors to $10.10 an hour.

Currently, no federal law protects against discrimination in the workplace on the basis of sexual orientation or gender identity. In 2012, LGBT news publications began to report that the Obama Administration was considering expanding E.O. 11246 – which prohibits federal contractors from discriminating on the basis of race, color, sex, religion, and national origin – to include sexual orientation and gender identity. According to these reports, 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. However, White House Press Secretary Jay Carney has maintained since April 2012 (when the Obama Administration publicly addressed the issue for the first time) that no such order is forthcoming and has continued to reiterate his earlier statements that the President prefers legislative, rather than executive, action on this front. Carney’s comments during the February 12, 2014 briefing did not stray from his previous course, indicating that an LGBT Executive Order is still “hypothetical” at this point.

On November 7, 2013, 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 — cleared the Senate with a bipartisan 64-32 vote. Yet, soon after, House Speaker John Boehner indicated that he would not bring the bill up for a vote in the Republican-controlled House of Representatives.

During the February 12, 2014 briefing, a Washington Blade reporter asked:

“Speaking of executive orders, there’s been a lot of discussion recently about a potential executive order that would bar federal contractors from discriminating on the basis of sexual orientation and gender identity. If the President were to sign such an executive order, could the Labor Department implement it?”

To which Secretary Perez responded:

“Well, I can’t get into what-ifs. I’m certainly aware of the executive order that was proposed that you’re talking about. And the President takes a backseat to no one in his commitment for equal access to opportunity for people regardless of race, religion, sexual orientation or gender identity. And it’s an issue that we continue to contemplate and work on.”

The OFCCP, an agency within the Labor Department, 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). In addition to its non-discrimination provisions, E.O. 11246 requires covered federal contractors to implement affirmative action programs on the basis of race, color, religion, sex, and national origin. Section 503 and VEVRRA require similar affirmative action programs with respect to disability and status as a protected veteran. It is 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.

In 2012, the EEOC issued its much publicized decision in Macy v Holder. There, the EEOC — following earlier court precedents which held that Title VII’s prohibition against discrimination based on “sex” extends to claims for sex stereotyping, as well any other claim asserting that gender was taken into account — ruled that transgender workers are protected under Title VII. Thus, the EEOC adopted the position that the sex stereotyping theory encompasses claims of discrimination based on transgender status.

At the February 12, 2014 briefing, the Washington Blade reporter followed up his initial question by asking:

“On a related note, there’s also been talk about implementing existing order — Executive Order 11246, which prohibits discrimination on the basis of gender, and apply that to transgender workers to prohibit discrimination against them in the wake of Macy v. Holder. Will the Labor Department take that step?”

Perez responded: “That issue is under review in the aftermath of the Macy decision. And I’ve asked my staff to expedite that review so that we can bring that issue to conclusion at the Department of Labor.”

When the reporter inquired as to when the review would come to an end, Perez replied “I’m hoping it will come to an end as soon as possible.”

Later in the briefing, a Reuters correspondent asked Carney whether “the administration is contemplating executive action on LGBT workplace non-discrimination.” To which Carney, yet again, indicated that no such order is forthcoming and continued to reiterate his earlier statements that President Obama prefers legislative, rather than executive, action on this issue.

“What our position is and has been is that we strongly support the Employment Non-Discrimination Act,” Carney said. “We note the progress made in the Senate, the fact that there’s been movement in the Senate on this, and I think against some of the conventional wisdom we’ve seen movement on this.”

“[W]e’re going to keep pressing Congress to catch up with the country on these issues,” he added.  “But I just don’t have any update on the discussion around other hypothetical EOs, and I think that’s what Secretary Perez was indicating.”

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