A One-Two Punch for Worker Protection: Both Federal Law and Executive Order Are Necessary [View all]

from the Center For American Progress

At a time when many families are struggling economically, recent research and data show that gay and transgender Americans are far too often forced out of a job and into the ranks of the unemployed due to workplace discrimination. To help solve this problem and put gay and transgender workers on equal footing with others in the workforce, federal policymakers should take two different steps.[1]

First, Congress could pass the Employment Non-Discrimination Act, or ENDA, into law. ENDA would prohibit most public and private employers from discriminating on the basis of sexual orientation and gender identity. It is mirrored to some extent on the protections and recourses that Title VII of the Civil Rights Act of 1964 provides to workers on the basis of race, color, religion, sex, and national origin.

Second, President Barack Obama could use his executive authority to require federal contractors to not discriminate on the basis of sexual orientation and gender identity. Currently, Executive Order 11246, or EO 11246, prohibits federal contractors from discriminating on the basis of race, color, religion, sex, and national origin.

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ENDA’s hopes for passage in the near term look bleak given the political climate in Congress. But even if Congress were to defy the political odds and pass ENDA today, an executive order for federal contractors would still be needed to level the workplace playing field for gay and transgender workers.

First, ENDA (as currently introduced in Congress) applies to employers with 15 or more employees, which is the same threshold that applies to Title VII. The existing contractor executive order, EO 11246, however, applies to businesses of any size that receive a government contract in excess of $10,000. So a federal contractor executive order that includes sexual orientation and gender identity would extend workplace protections for gay and transgender workers in smaller companies that are doing business with the federal government who would otherwise not be covered under ENDA. A CAP-commissioned poll from late last year showed that a majority of small business owners said that they support these types of policies and that they would not be a financial burden to implement or maintain.

Second, a contractor executive order would ensure that gay and transgender people have the same type of protections currently afforded to women, people of color, and others under EO 11246. Under the proposed ENDA, individuals and groups of individuals must come forward to file discrimination complaints with the Equal Employment Opportunity Commission (which people can do now thanks to Title VII for discrimination based on race, color, religion, sex, and national origin). But people discriminated against by federal contractors based on those five characteristics can also file complaints through the Office of Federal Contract Compliance Programs, or OFCCP, which enforces EO 11246.


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