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For several years now, President Obama has been urged to sign an executive order barring federal contractors from discriminating on the basis of sexual orientation and gender identity. The order would essentially add those two categories to the existing EO 11246 signed by LBJ in 1964. Democrats failed to pass such a law from 2009-2010 when they controlled both houses of Congress. Since 2011, the Obama administration has steadfastly refused to sign the executive order, which would cover 22% of the American workforce, claiming they prefer a "legislative" solution despite the fact that Speaker John Boehner has said he will not bring the non-discrimination legislation similar to the executive order to the floor of the House. In response, members of Congress began urging President Obama to sign the executive order. In 2011, 72 members of the House signed a letter urging him to issue such an order. Last year, two letters garnerd signatures from 110 House members and 37 Senators. In the letter issued today, that number has climbed to 195 members of Congress-- 148 House members and 47 Senators.

When President Obama was Senator Obama and candidate for President, he answered and signed a candidate questionnaire supporting just such an executive order, yet now in year 6 of his Presidency, no order has been forth coming, in spite of recent executive orders similarly applying to federal contractors raising the minimum wage and changing overtime rules to boost workers' pay. Signing the order would be in line with the President's 2012 campaign promise to take executive action in areas where he can when Congress refuses to act.

Such an order would also not be out of the ordinary. Dating back to FDR's 1941 Executive Order 8802 banning racial discrimination by defense contractors, Presidents of both parties have used the Executive Order process to end employment discrimination by federal contractors and by the government itself. Since FDR's EO 8802, there have been not less than 13 such EO's including:

  • EO 9346 by FDR extending 8802 to include all Federal contractors,
  • EO 9664 by Truman extending FDR's orders under the National War Agencies Appropriation Act of 1946,
  • EO 9808 by Truman establishing a Committee on Civil Rights to study long term solutions to employment discrimination and civil rights,
  • EO 9881 by Truman ordering the desegregation of the armed forces,
  • EO 10308 by Truman creating a committee to create employment rules for federal contractors,
  • EO 10577 by Eisenhower amending the Civil Service Rules to prohibit racial, political and religious discrimination in the civil service,
  • EO 10590 by Eisenhower making explicit the executive branches non-discrimination policy with regards to race, color, national origin and religion,
  • EO 10925 by Kennedy establishing a President's  Equal Employment Opportunity Committee, reaffirming Eisenhower's non-discrimination policy and creating rules federal contractors must follow,
  • EO 11246 by Lyndon Johnson setting a $10,000 in one year cellar on contracts for contractors not complying with the non-discrimination policies, prohibiting government agencies from discriminating on the basis of "race, color, religion, or national origin", prohibiting federal contractors from discriminating on the basis of "race, color, religion, sex, or national origin," requiring contractors with 51 or more employs to implement affirmative action plans to increase minority participation in the workforce, and providing authority to implement and enforce the EO to the Dept of Labor,
  • EO 11375 by LBJ amending EO 11246 adding sex to the list of categories on which governmental agencies and the Civil Service Commission may not discriminate,
  • EO 11478 by Richard Nixon barring discrimination in the competitive service of the federal civilian workforce, and
  • EO 12086 by Jimmy Carter consolidating equal employment opportunity enforcement to the Secretary of Labor and giving him the authority to delegate that enforcement to any officer, agency or employee of the executive branch (which has been done giving that power to the Office of Federal Contract Compliance Programs).

Every President since has renewed LBJ's EO 11246 with the later slight modifications. In 1998, President Clinton issued EO 13087 amending Nixon's 1969 order adding sexual orientation as a protected class. Presidents Bush and Obama both kept that order intact.

The history of these orders shoots down the claim that the protections are temporary. LBJ's order have been in force for 50 years this year. Most of the others are also still in force except as superceded by later EO's providing greater protection. By signing the order, President Obama would not only be fulfilling a promise, he'd also be raising the profile of the problem. A recent poll found that 75% of the American people think there is already a federal law prohibiting sexual orientation employment discrimination. In as much as the LGBT equality movement has sought to educate the public on how wrong such discrimination is (with public opinion shifting from just 56% support in the late 1970's to support by 89% in a 2009 Gallup poll), it hasn't sunk in that the law isn't in place yet.

The President's failure to sign the order hasn't even escaped the ridicule of the late night hosts. In 2011, Jon Stewart of the Daily Show mocked the Obama Administration's less than stellar response to calls to sign the order:

Even with the order in place, it will take months if not years to implement the policy. Though the enforcement infrastructure is currently in place in the form of the Office of Federal Contract Compliance Programs (OFCCP), the new rules will have to be written, submitted for review, and published before being implemented. Even then, the affect won't be immediate as the revised rules and language would only be added to federal contracts as they expire and new ones are signed. It isn't an ideal solution, but the executive order, if patterned after EO 11246 would actually provide greater protections to workers of federal contractors since no version of the Employment Non-Discrimination Act introduced in Congress would give OFCCP the same powers it has to investigate and proactively prevent discrimination as it has now with race, sex, color, etc. Signing the EO also raises the profile of the issue, making it more, not less, likely to be addressed by Congress. And with huge super majorities of Americans favoring the law, it also provides an excellent election year issue if Speaker Boehner continues to prevent the bill (already passed by the Senate) from coming to the House floor.

Originally posted to craigkg on Tue Mar 18, 2014 at 02:54 PM PDT.

Also republished by Milk Men And Women and Community Spotlight.

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