As has been reported here before, the LGBT community and its allies have been pushing the White House to act on a proposed executive order that would bar federal contractors from discriminating against workers on the basis of sexual orientation and gender identity. Democratic leadership in Congress is onboard with the proposal, as are the 47 senators and 148 representatives who have signed a letter urging the President to make the executive order a reality. 72 percent of Americans support and only 23 percent oppose employment protections for LGBT people--but the scary part is that (according to this poll) 75 percent incorrectly believe it is already the law. The President himself fully supports and is willing to sign the Employment Non-Discrimination Act (ENDA) that has passed the Senate and is languishing in the right-wing House. As for what has come to be known as the ENDA executive order, he supported it when he was running in 2008 and promised the Houston GLBT Political Caucus that he would sign it. Despite all of this, we have yet to see its signing.
Why is this executive order necessary? Well, although the White House keeps reiterating that it prefers to see a legislative response to the problem of anti-LGBT discrimination, it is quite simply not going to happen under the House leadership of John Boehner. The ENDA executive order is not a comprehensive solution, to be sure. But what it would do is extend these important protections to approximately 20 percent of the workforce. That's a pretty damn big dent with minimal effort and no undue burden on anybody. The Washington Post editorial board says it well:
The order would not be unduly burdensome. After decades of urging by civil rights groups, more than 80 percent of Fortune 500 companies have adopted similar provisions of their own. Many contractors already abide without difficulty by these corporate codes protecting lesbian, gay, bisexual and transgender employees. Besides, there’s considerable precedent for the White House mandating that those who do business with the federal government do it fairly and don’t discriminate against their employees in the process. In 1934, President Franklin D. Roosevelt issued an order requiring that federal contractors adhere to principles of fair competition; in 1965, President Lyndon B. Johnson prohibited racial discrimination in contractors’ hiring processes.
Speaking of precedent,
craigkg puts the ENDA executive order in a bit of historical context:
When FDR issued the first employment non-discrimination executive order, EO 8802 in 1941 banning racial discrimination in the national defense industry and creating the Fair Employment Practices Committee, he did so because A. Philip Randolph was planning a march to protest discrimination. The LGBT community actually has marched on this issue (among others) in 2009, 2000, 1993, 1987 and 1979. FDR's EO was met with violence by angry whites scared blacks would take their jobs, including a riot in Beaumont, Texas that required 1,800 national guard troops to put down and left 2 people dead, more than 50 injured and 200 arrested. Another strike and riot incited by FDR's EO happened at the Alabama Dry Dock and Shipbuilders Company the following year when 20,000 whites walked off the job when they found out the company was going to comply with the FEPC.
FDR's subsequent EO (9346) in May 1943 banning racial discrimination by all Federal contractors was met with mass resistance including a transit strike by the Philadelphia transit system over the possibility that 8 blacks would be trained as streetcar motormen. A review of records by the Fisk University Social Science Institute documented some 242 racial battles in 47 cities stemming from that EO. Both these EO's laid the foundation for Truman's EO desegregating the military and subsequent EO's by Truman, Eisenhower, Kennedy and finally LBJ that still protect federal contractors from race, color, national origin and sex discrimination to this day. Does President Obama think we'll see the same kind of backlash by prohibiting discrimination based on sexual orientation and gender identity when the American public has already overwhelmingly said they come down on the side of equality?
Indeed. But the line we've been getting from White House Press Secretary Jay Carney is that the administration is waiting on Congress to act. And yesterday, after getting a question about the executive order, he went a step further and said that such a rule would be "redundant" given the completely hypothetical passage of ENDA.
From the Washington Blade:
“I think if the law passed — and I’m not a lawyer — and I haven’t read every sentence of the law, but I think if a law passed that broadly banned this kind of employment discrimination, it would make redundant an executive order,” Carney said.
Carney articulated his belief that an executive order would be “redundant” in the event ENDA became law after emphasizing the broad-based protections under the bill, which applies not just to federal contractors, but to many public and private employers.
“I think the employment non-discrimination legislation, the Employment Non-Discrimination Act, would broadly apply, and that’s one of the reasons why we support it,” Carney said. “Because it’s a broad solution to the problem, and it ought to be passed by Congress.”
Well...no. No, Mr. Carney, you're just wrong about that. Think Progress has
a wonderful article up today on just why an executive order would
not be redundant, even given the highly unlikely passage of ENDA:
In reality, the two would work in conjunction. On its own, the executive order would extend protections to an estimated 11 to 16 million employees of federal contractors who are not already protected by their companies. Though ENDA would extend to all public and private employers instead of just contractors, the executive order would still protect many workers that ENDA wouldn’t. There are at least two significant reasons why ENDA — watered down after decades of haggling — and a nondiscrimination executive order would not be “redundant.”
First, ENDA does not cover small businesses. In its current form, passed by the Senate in November, the bill defines “employer” as a business that has “15 or more employees for each working day in each of 20 more calendar weeks in the current or preceding calendar year.” This means that there are many small businesses that would be totally exempt from the protections ENDA extends to LGBT employees. Any such business that provided at least $10,000 of service to the federal government, however, would be bound by the expectations of an executive order, regardless of how many employees work there daily.
Secondly, ENDA has a glaring religious exemption that would allow many organizations and some businesses to continue discriminating against LGBT employees. According to the bill, any employer that is allowed to discriminate on the basis of religion according to Title VII of the Civil Rights Act of 1964 could also still discriminate on the basis of sexual orientation and gender identity. This is true even though the religious exemption they enjoy does not allow them to discriminate on the basis of other characteristics like sex, race, national origin, or disability. Thus, ENDA would still allow religious corporations and schools, for example, to either refuse employment because of someone’s LGBT identity, or condition employment on conformity to anti-LGBT doctrine. Any such organization that was also a federal contractor, however, would be bound by an executive order to not discriminate.
Another important point:
Claiming that the executive order is “redundant” also further contradicts the justification that the Obama administration used for raising the minimum wage for federal contractors earlier this year. If Congress approves a nation-wide minimum wage hike to the same rate, then that executive order would no longer serve a purpose. In contrast, not only would an LGBT nondiscrimination order protect millions of employees until Congress passes ENDA — which House Speaker John Boehner says won’t be happening this year — it would continue to protect many employees that would not be covered by ENDA.
I want to understand the reluctance on the part of the White House to do this, but there just isn't a logical explanation. It's beyond perplexing.
It's time to just sign this thing already.