Workers in 29 states can be fired for being gay, and for being transgender in more than 30 states, a state of affairs House Republicans are in no hurry to change. President Obama is sidestepping Congress on Monday to do what he can, signing an executive order barring federal contractors from discriminating against workers on the basis of sexual orientation or gender identity. But he's not only responding to congressional inaction on these issues, he's also responding to the Supreme Court's
Hobby Lobby decision by refusing to include the kind of overly broad religious exemption that the Court used to allow employers to refuse contraceptive coverage in that case.
A White House fact sheet on the order specifies that:
President Obama’s Executive Order does not allow for any exemption beyond the one added by Executive Order 13279, issued by President George W. Bush, which permits religiously affiliated contractors to favor individuals of a particular religion when making employment decisions, by specifying that Executive Order 11246, “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.” In addition, under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit.
In recent weeks, the Senate-passed version of the Employment Non-Discrimination Act had
lost support from major LGBT groups over its religious exemption, which presumably helped pressure Obama on that aspect of this executive order.
The order will apply to "federal contractors and federally-assisted construction contractors and subcontractors who do over $10,000 in Government business in one year"; as Jonathan Capehart points out, many already have anti-discrimination policies in place:
Obama’s executive order will apply to the 24,000 companies designated as federal contractors whose 28 million workers make up a fifth of the country’s workforce. One reason we haven’t heard any squawking from the business community is because most federal contractors are already protecting their LGBT employees. Among the data points in a “confidential memo” written by the Williams Institute and the Center for American Progress in 2012 for then-Rep. Barney Frank (D-Mass.) was this key statistic: 92 percent of employees of federal contractors in the Fortune 1000 are already protected by a company-wide sexual orientation nondiscrimination policy and 58 percent are already protected by a gender identity nondiscrimination policy.
This executive order is another step toward making sure that all American workers are protected from being discriminated against because of who they are or who they love. But the next big step will require Congress—and it can't include a religious exemption that allows virtually any employer to say "I get to fire this LGBT person because religion."