James Friso was a straight aircraft sheet metal/structural mechanic working in Taji, Iraq when he encountered a homophobic environment working for DynCorp. From his complaint (pdf):
Around November 2006, one of Friso's male co-workers (the "Co-worker") began making derogatory sex-based comments to Friso on a daily basis. The conduct continued until January 2007, when Defendant transferred Friso to Mannheim, Germany.
Specifically, the Co-worker called Friso "faggot," "dick-sucker" and/or "queer" on a daily basis. The Co-worker frequently referenced Friso's size in his insults, for example using terms such as "whiney little bitch," "short little mother fucker" and "short little bitch."
In addition to foregoing conduct, the Co-worker accused Friso of engaging in homosexual acts, and described such acts to Friso. For example, on one occasion, the Co-worker told Friso to "go back to Mannheim and suck [Friso's former supervisor's] dick." The Co-worker made this comment in the presence of Defendant's management, but management took no action in response.
The EEOC became involved and the settlement was brokered on the basis that Friso's harassment violated assurances of non-discrimination on the basis of gender. As satisfying as the win is, the door is left open that purely homophobic-based harassment and discrimination funded by taxpayers is still, technically quite legal. Attorney Tico Almeida, president of Freedom to Work, a national LGBT workplace discrimination advocacy organization told the Washington Blade:
“The company will not have to add sexual orientation or gender identity to its non-discrimination policy,” Almeida said. “Even after this case, DynCorp can discriminate against LGBT employees while getting fat on billions of dollars in taxpayer money.There is currently a petition on Change.org calling on DynCorp to amend their non-discrimination policies to avoid more situations like Friso's in the future.
The members of the civil rights enforcement team at the Department of Labor currently have their hands tied and are not allowed to investigate federal contractors like DynCorp for discrimination and harassment based on sexual orientation because President Obama has not yet signed the ENDA executive order.”
Safeguarding the use of taxpayer funds against the propagation of disciminatory or hostile work environments for LGBT Americans is not a new call to action. This was suggested back in 2008 to the administration by both the Human Rights Campaign Fund (HRC) and the Center For American Progress (CAP) in their recommendations for adminstration action made during the transition period. In HRC's A Blueprint for Positive Change" they said:
Non-Discrimination by Employers and Service Providers Who Use Federal Dollars
When the federal government hires private companies to perform government functions with public funds, it can and should expect the contractors to adhere to the same civil rights standards as the government would if it were doing the work itself.
CAP's recommendation for LGBT administration actions in "The Road Ahead" (pdf) included:
The executive branch can expand the reach of the nondiscrimination policy by requiring all federal contractors to maintain [LGBT inclusive] nondiscrimination policies for their employees as well.That the EEOC involved itself in the Frisco case speaks well of Patricia Shui's stewardship of the Office of Federal Contract Compliance Programs. Shui generally been considered one of the administration's truly "good picks." Not a corporate-lackey seat warmer, Shui was cheered at the time of her appointment with advocates speculating:
Given Shiu’s past focus on family leave and discrimination, it is likely that she will be a strong advocate for gender pay equity issues.
In fact, reports are coming out of D.C. that much of the most onerous red tape that is necessitated by any Executive Order has already been cut. It's said a draft copy of the Executive Order has cleared lawyers at the Labor Department and other bureaucratic agencies. A final version has arrived at the White House and now awaits only the approval of a few senior staff before it lands on the President's desk for his signature.
President Obama should put pen to paper as soon as possible.
A history of Executive Non-Discrimination Orders
For context, a summary of Executive Order 11246, adapted from Department of Labor website, describes it as "a major safeguard, protecting the rights of workers employed by federal contractors-approximately one-fifth of the entire U.S. labor force-to remain free from discrimination on the basis of their gender, race, religion, color or national origin [...] and opening the doors of opportunity through its affirmative action provisions."
Franklin Delano Roosevelt
(Frank O. Salisbury/Wikicommons)
June 25, 1941
Executive Order 8802
President Franklin Delano Roosevelt responded to leaders, such as A. Philip Randolph and Baynard Rustin, who protested that African-American workers were blocked from taking jobs in segregated war production factories. FDR signed Executive Order 8802, outlawing discrimination based on race, color, creed and national origin in the federal government and defense industries.
May 27, 1943,
Executive Order 9346
In 1943, President Roosevelt broadened the coverage of Executive Order 8802 by making it applicable to all government contractors.
December 3, 1951
Executive Order 10308
President Harry S. Truman’s Executive Order 10308 advanced the achievements initiated during WWII by creating the Committee on Government Contract Compliance. The committee was tasked with overseeing compliance by federal contractors with the non-discrimination provisions of Executive Order 8802.
Dwight D. Eisenhower
August 13, 1953
Executive Order 10479
President Dwight D. Eisenhower took a further step on August 13, 1953, by creating the President’s Committee on Government Contracts under Executive Order 10479. This reorganization furthered the principle that “…it is the obligation of the contracting agencies of the United States Government and government contractors to insure compliance with, and successful execution of, the equal employment opportunity program of the United States Government.” This Executive Order made the head of each contracting agency of the federal government responsible for obtaining compliance by their contractors and subcontractors with the nondiscrimination provisions of the contracts into which they entered.
John F. Kennedy
March 6, 1961
Executive Order 10925
By the time John F. Kennedy was elected President, it was evident that to advance equal employment opportunity federal involvement needed to be broader and more proactive. Shortly after JFK took office, he signed Executive Order 10925, opening a new chapter in achieving access to good jobs by requiring government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”
Executive Order 10925 gave federal contracting agencies authority to institute procedures against federal contractors who violated their EEO obligations-including contract cancellation, debarment from future contracts and other sanctions.
September 24, 1965
Executive Order 11246
EO 11246 charged the Secretary of Labor, a Cabinet-level official with strong enforcement authority, with the responsibility of ensuring equal opportunity for minorities in federal contractors’ recruitment, hiring, training and other employment practices. EO 11246 continued and reinforced the requirement that federal contractors not discriminate in employment and take affirmative action to ensure equal opportunity based on race, color, religion and national origin.
So while extending an Executive Order of non-discrmination to LGBT Americans would be a historic milestone specifically for that community, it would be entirely consistent with long-standing American principles of expanding opportunity and the government leading the way in ensuring fairness and equal opportunity are the guiding forces driving employment decisions. These are principles President Obama himself has repeatedly expressed his support for, in particular to the gay community. Just this week, asked about the DynCorp situation, White House spokesperson Shin Inouye told Washington Blade's Chris Johnson:
"President Obama has long supported an inclusive Employment Non-Discrimination Act (ENDA) and believes that our anti-discrimination employment laws should be expanded to include sexual orientation and gender identity."
Pressed on executive order, Inouye said:
"Regarding your question on a potential Executive Order, I don’t have anything to report."If we are to take the adminstration and the party at their word that passing ENDA is a goal of the 113th or 114th Congress, then issuing this Executive Order offers a significant long-term tactical advantage. It is a incrementalist approach, offering more, but not complete protection. It can serve a test balloon for public reaction and also as an experimental laboratory providing the EEOC with a wealth of data with which to counter opponents often hyperbolic fear-mongering of what ruin will befall the republic should Congress actually pass ENDA. Critics will even harder-pressed to find any nightmare scenarios of "gays gone wild" once the right to equal opportunity has been affirmed. They will once again predict falling skies, and once again, be wrong.
The EEOC could, in the next few years, serve a parallel function that to the Pentagon's Working Group Study Group did on DADT compiling data and offering a greater chance of success next time they attempt to pass ENDA legislatively.
The symbolic nature of extending federal non-discrimination assurances to the LGBT community cannot be underestimated, of course. There are, however, a great deal of pragmatic benefits that such an act will deliver.
The scope of the effect is quite enormous. From the Department of Labor's own statistics 22 percent of the American workforce will be affected:
OFCCP’s jurisdiction covers approximately 26 million or nearly 22% of the total civilian workforce (92,500 non-construction establishments and 100,000 construction establishments). The Federal Government awarded more than $179 billion tax-payer dollars in prime contracts in Fiscal Year 1995.The reason this number is so high is EEOC jurisdication extends not just to the business of the contract, but to the entire company.
In other words, if a major company sells the government widgets, even if the widgets account for only, say, 1 percent of the company's total business, the entire company becomes obliged to follow EEOC guidelines. In this day of super-mega corporations this represents a very big stick (or call it a carrot) the government can use to move this issue forward.
There is a manner that this order would actually be more effective than ENDA. ENDA would require workers to proactively file complaints. But the EEOC can actively investigate companies without anyone filing a formal complaint. Such a situation happened recently with one of largest pharmaceutical companies in the world, AstraZeneca. The settlement announcement from the DOL:
The company is a federal contractor that receives more than $2 billion to supply drugs and medical equipment to VA hospitals and centers across the country.
The Labor Department’s Office of Federal Contract Compliance Programs found in its investigation that the company was discriminating against women by paying some of their female sales associates, on average, $1,700 less per year than men doing the same job. One hundred and twenty four AZ saleswomen will share in the $250,000 settlement.
Many of the women had no idea they were experiencing discrimination. That’s not surprising. How would they know what their male counterparts were making?
Indeed, how would one know that? The EEOC spotted the pay discrepancy in a routine examination of the companies' records. This is the power of proactive investigations.
"Let’s say a federal contractor in Texas or Florida fires an employee with a perfect performance record as soon as he comes out of the closet as gay. Under current law, that fired employee can’t file a complaint with any state agency, because neither Texas nor Florida has its own ENDA. He can’t file a complaint with the U.S. Equal Employment Opportunity Commission because Congress has not yet passed the federal ENDA.
However, after President Obama signs the ENDA Executive Order, the fired gay worker will be able to file a complaint with a the civil rights office at the U.S. Department of Labor. The Labor Department has 800 inspectors across the country that deal specifically with discrimination complaints against federal contractors. After an investigation, the Labor Department can litigate against the discriminatory company and win back-wages and reinstatement for the fired worker. So this ENDA Executive Order will provide real change for actual LGBT individuals who otherwise would have been denied justice."
And the politics
Any suggestion this would be a dangerous move in an election year cannot be seen as driven by any rational look at any available data. In fact, one of the more frustrating aspects is a recent poll (pdf) confirmed nearly 90% of people already believe this is the law. It is a sad irony that hardcore anti-gay bigots can enjoy the unfettered legality of firing and harrassing LGBT people in the workplace free of consequences in most of the country, and still nurse a grudge they are victims of the radical homosexual agenda that requires them to respect some fantasy quota of having to hire and promote homosexuals.
The issue of LGBT employment discrimination does not divide the electorate. The Human Right Campaign released the latest polling on the topic of LGBT employment discrimination in December, concluding: "Support for anti-discrimination laws crosses party lines, ideological boundaries, religious differences, and age groups."
Overall, 77 percent of voters support protecting gay, lesbian, bisexual and transgender people from discrimination in employment. Over half (51 percent) support anti-discrimination laws strongly. To put the numbers to a graph:
"Do you favor or oppose protecting gay, lesbian and transgender from discrimination employment?"
It isn't even clear major players in the GOP will have an appetite to make hay. Even running in a GOP primary, Rick Santorum and Mitt Romney don't want to be seen as "discriminating" people. At a debate in January they said:
"At the same time, from the very beginning in 1994, I said to the gay community, I do not favor same-sex marriage. I oppose same-sex marriage and that has been my view," he added. "If people are looking for someone who will discriminate against gays or will in any way try and suggest that people -- that have different sexual orientation don't have full rights in this country, they won't find that in me."
"I would be a voice in speaking out for making sure that every person in America, gay or straight, is treated with respect and dignity and has the equality of opportunity.
GOP certainly enjoys their own definition of what constitutes "discrimination," but it seems they are becoming sensitive to the label "discriminatory" being hung upon them, even when pandering to the GOP primary voters.
Of course, the social conservatives will rend their garments. Do they ever miss an opportunity? Recall when Obama's first day of school address was declared "socialist indoctrination of children"? Recall that Rick Perry rallied social conservatives to unite behind him to stop Obama's "war on religion"? Poor Rick, that didn't resonate with many folks. Recall that Fox News called the president "Mubarak Obama"for dropping the Defense of Marriage defense? Recall that repeal of Don’t Ask Don’t Tell is decried as having turned the military into a “massive pro-gay propaganda machine"?
No, you don't recall? Well, regular observers of right-wing nut jobs know they never stop beating that drum. Tony Perkins of the Family Research Council has been telling followers for a year that re-election of Barack Obama can only lead to the apocalypse.
And yet, the president's personal popularity remains high, particularly in light of the difficult economic conditions his administration is facing, relative to other presidents who have presided over harsh economic times (Carter, Bush 1).
President Obama's ability to withstand even thrive in the face of such hyperbolic attacks is seriously underestimated, by his own staff, and many of his supporters.
The reality is, that we have a gay-friendly president is a cat that is already well out of the bag. The venn diagram of voters who consider LGBT advancement a deal-breaker and those who might vote for President Obama in 2012 probably looks something like this:
The effect on employers
This will be minimal, likely just forcing a few recalcitrant companies to get onboard with what is now a standard practice. Any order is very likely to include a standard grace period for existing contractors to come into compliance. If they do not, they will have made their own bed. It's highly likely the overwhelming majority enjoy their government largess more then they do discrimination.
HRC's most recent Corporate Equality Index showed yet again this year, record numbers of companies receiving perfect scores. Of the Fortune 500: 86 percent include sexual orientation in non-discrimination policies; 76 percent offer same-sex partner benefits; gender identity inclusion has soared to 50 percent in 2012 from just 5 percent in 2002.
In fact, this won't even be a radical shock to majority of military contractors. The Williams Institute recently studied the top 50 contractors (pdf) and found that the top five—25 percent of the contracts—would be in compliance already.
Ken Disken, senior vice president of the number one military contractor, Lockheed Martin, says of their inclusive policy:
"Lockheed Martin is committed to providing the most supportive and inclusive environment for all employees. Ensuring a positive, respectful workplace and robust set of benefits for everyone is critical to retaining employees and helping them develop to their fullest potential. Our efforts to provide the best environment possible for all employees support the corporation's business objectives and the professional aspiration
The second largest contrator, Boeing Corporation, added "gender identity" to existing non-discrimination policies back in 2006. Connie Jack of Boeing said:
"That was a major celebration for us. Diversity is itself a core business strategy of the company. It is our intent to create an inclusive environment that provides for a fully engaged workforce."
The fifth largest contractor, General Dynamics, says:
Appreciating differences involves respecting the underlying characteristics that make each of us unique. These differences include personal points of view, beliefs and ways of thinking, as well as tangible differences such as age, gender, ethnicity, national origin, physical ability, military experience and sexual orientation, among others. General Dynamics recognizes that the best ideas and solutions are developed by gathering input from people who have these different perspectives as well as these tangible differences.The opportunities to make political hay out of this become rather awkward for opponents when they find themselves arguing that the leaders of the very industry they purport to defend have policies that undermine the creditability of their objections. If the top five contractors can command the lion's share of business, and also speak proudly of their inclusive environments, there really is no reality-based argument for objecting.
There is only win here for the President.
This is the second in a two-part series on LGBT employment discrimination. Part one is here: Putting a face to LGBT employment discrimination.