Getting to ENDA: On the Road Less Traveled
Second of two parts
On the long list of hopes that LGBT advocates put together at the beginning of the Obama administration was the idea that the president should issue an executive order requiring the federal government enter into contracts only with companies that have non-discrimination policies protecting employees based on sexual orientation and gender identity.
Fred Sainz, vice president of communications for the Human Rights Campaign (HRC), noted that HRC included the recommendation as part of its “Blueprint for Positive Change” document, put out at the beginning of the Obama administration.
Richard Socarides, president of the recently formed LGBT media and communications group Equality Matters, told the Washington Blade February 2 that such an order “ought to be something the president seriously considers doing” now.
Both said the action would be a step towards full protection against employment discrimination—an important step now, when the more far-reaching Employment Non-Discrimination Act (ENDA) appears unlikely to move during the 112th Congress.
Federal contractors comprise approximately 22 percent of the U.S. civilian workforce, according to the U.S. Department of Labor.
But when it comes to civil rights for LGBT people, the administration has eschewed executive orders and other official directives. Instead, it has taken the route of interpreting existing regulations more broadly than they have been in the past. And rather than having the president take the lead in doing so, it has let the heads of the various federal departments announce the expanded coverage.
President Obama has issued only two official directives regarding civil rights protections for LGBT people. The first was a memorandum, in June 2009, that directed Secretary of State Hillary Clinton and the Director of the Office of Personnel Management John Berry to determine what benefits provided to the spouses of straight federal employees could also be offered to the partners of gay federal employees under existing laws.
The second was a memorandum, in April 2010, that directed the Department of Health and Human Services to ensure that hospitals participating in the federal Medicare or Medicaid reimbursement programs allow patients to designate their own visitors, including same-sex partners.
A presidential memorandum has the same legal force as an executive order, according to a memo from Randolph Moss, acting assistant attorney general to President Clinton, in 2000. Unless otherwise specified, either remains in effect even after a new administration takes office. A subsequent president could also change either.
One difference is that executive orders follow a more formal process for publication. They are numbered and must be published in the Federal Register, the official record of executive branch documents. Presidential memoranda are not numbered and do not have to be published in the Register—although they may be. President Obama specified that both of his LGBT-related memoranda be published.
Without a public directive of either kind from the White House, however, OPM quietly extended employment protections for federal employees to cover gender identity in January 2010.
Similarly, without a public presidential missive, the Department of Labor (DOL) in June 2010 issued a statement clarifying that the Family and Medical Leave Act (FMLA) allows any private employee covered by the FMLA “who assumes the role of caring for a child” to take family leave “regardless of the legal or biological relationship” to the child. In doing so, it recognized nonbiological, nonadoptive parents in same-sex relationships.
Like the DOL, two other federal departments have—without official presidential requests—issued “guidance” about how to interpret existing regulations to be more inclusive of LGBT people, even if the regulations don’t specify sexual orientation or gender identity.
The Department of Education issued guidance to school officials last October, reminding them that federal law requires schools to take action against bullying—including gender-based and sexual harassment of LGBT students. Even though current laws enforced by the department’s Office for Civil Rights do not explicitly address harassment based on sexual orientation, they do prohibit sexual harassment and gender-based harassment directed at LGBT students or those perceived to be.
And the Department of Housing and Urban Development (HUD) issued guidance last July stating that, although the Fair Housing Act (FHA) does not explicitly cover sexual orientation- or gender identity-based housing discrimination, such discrimination may be covered by the FHA in other ways. For example, gender-identity discrimination may be seen as gender discrimination, and discrimination against a gay man because of fear he will spread HIV/AIDS may constitute illegal discrimination on the basis of a perceived disability.
None of the departmental guidance was in reaction to President Obama’s June 2009 memo because the guidance covered people other than federal employees.
Yet another example of letting a department lead the way was the February 23 announcement from Attorney General Eric Holder that the Department of Justice (DOJ) has concluded one section of the Defense of Marriage Act is unconstitutional and it will not defend that part in two pending cases.
Unlike other LGBT-related departmental announcements, Holder’s statement made it clear that the president was actively involved in the decision—but the announcement still came from DOJ, not the White House.
There is precedent for presidents to issue executive orders aimed at prohibiting discrimination. President Lyndon B. Johnson in 1965 issued an order prohibiting federal contractors and subcontractors from discriminating in employment decisions “on the basis of race, color, religion, sex, or national origin.” President Richard Nixon, in 1969, issued an executive order prohibiting discrimination on the basis of race, color, religion, sex, national origin, handicap, and age in federal civilian employment. In 1995, President Bill Clinton issued an executive order prohibiting federal agencies from discriminating on the basis of sexual orientation for the purpose of granting security clearances. And in 1998, he issued an executive order to add “sexual orientation” to the non-discrimination protections for federal civilian employees.
The executive order called for under HRC’s Blueprint is one that would add sexual orientation the non-discrimination protections for the employees of companies that contract with the federal government.
The Department of Labor enforces anti-discrimination laws that apply to federal contractors, but so far, the department has made no move beyond the FMLA in reinterpreting existing regulations to clarify protections for LGBT people.
Similarly, the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws among most private employers with more than 15 employees, has issued no guidance on how existing EEOC laws might still cover some types of anti-LGBT discrimination—such as gender discrimination—in the absence of fuller ENDA protections.
Brian Moulton, chief legislative counsel for HRC, acknowledged that his organization’s focus to date has been on ENDA, rather than “half measures,” such as reinterpretations of existing policies across an array of federal departments and agencies. But now that Republicans control the House and the prospects for passing ENDA have dimmed for the near future, the topic is worth a look, he said, because “the world’s a little different.”