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37 Senators sign letter urging President Obama to issue Executive Order prohibiting sexual orientation and gender identity discrimination by federal contractors

More than a third of the U.S. Senate, including a majority of the Democratic leadership, has endorsed a letter urging President Obama to issue an Executive Order barring federal contractors from discriminating on the basis of sexual orientation and gender identity.

“Issuing an Executive Order that includes sexual orientation and gender identity is a critical step that you can take today toward ending discrimination in the workplace,” wrote the Senators. “By expanding protections for LGBT employees of federal contractors, you would be helping to ensure that all Americans get an equal opportunity to succeed and that federal taxpayer dollars are used to support companies with the best employment practices.”

The letter, signed on February 14, 2013, was spearheaded by Senator Jeff Merkley (D-OR). The other Senators who signed the letter are: Tom Harkin (D-IA), Chris Coons (D-DE), Jeanne Shaheen (D-NH), Mazie Hirono (D-HI), Sheldon Whitehouse (D-RI), Richard Blumenthal (D-CT), Ron Wyden (D-OR), Patrick Leahy (D-VT), Barbara Boxer (D-CA), Tom Udall (D-NM), Al Franken (D-MN), Dianne Feinstein (D-CA), Claire McCaskill (D-MO), Tammy Baldwin (D-WI), Martin Heinrich (D-NM), Kirsten Gillibrand (D-NY), Carl Levin (D-MI), Elizabeth Warren (D-MA), Frank Lautenberg (D-NJ), Amy Klobuchar (D-MN), Barbara Mikulski (D-MD), Sherrod Brown (D-OH), William Cowan (D-MA), Mark Udall (D-CO), Dick Durbin (D-IL), Debbie Stabenow (D-MI), Bernie Sanders (I-VT), Chuck Schumer (D-NY), Brian Schatz (D-HI), Mark Begich (D-AK), Mark Warner (D-VA), Ben Cardin (D-MD), Jack Reed (D-RI), Robert Casey (D-PA), and Robert Menendez (D-NJ).

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.

Early last year, multiple press reports indicated that the President was considering expanding Executive Order (E.O.) 11246 – which currently covers race, color, sex, religion, and national origin – 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 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.

However, 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.

“Corporate America continues to demonstrate that creating a level playing field for LGBT workers is a best business practice,” the Senators asserted. ”In fact, amending the Executive Order would not impose a radical change on federal contractors but would simply speed up a process of modernizing anti-discrimination policies that has been underway in the private sector for decades. The five largest federal contractors – Lockheed Martin, Boeing, Northrop Grumman, Raytheon, and General Dynamics – already have LGBT-inclusive non-discrimination policies, as do the majority of the 25 largest federal contractors. It only makes sense that our government should prioritize the awarding of billions of taxpayer dollars spent on government contracts to those companies with workplace policies proven to be the best.”

During an April 12, 2012 press briefing, White House Press Secretary Jay Carney confirmed that the President would not, at least for the time being, sign an executive order to bar federal contractors from discriminating on the basis of sexual orientation and gender identity. “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.

“We write as supporters of the Employment Non-Discrimination Act (ENDA) to ask that you issue an Executive Order to prohibit discrimination on the basis of sexual orientation and gender identity by federal contractors,” the Senators stated in the letter. “We are committed to enacting legislation to protect all Americans. In the meantime, you are in a position to protect millions of American workers immediately by including sexual orientation and gender identity alongside long-standing anti-discrimination protections.”