President Obama: Protect LGBT workers through executive order

US President has got a rare and momentous opportunity to promote equality in America, writes Sethi.

Boy Scouts, Parents Deliver Petition To Boy Scout HQ To End Ban On LGBT Scouts
The Boy Scouts of America is yet to revisit its ban on gay membership [Getty Images]

The very nature of love compels us to express it. Rings decorate our fingers, photos adorn our offices and the names of significant others sprinkle our conversation. For millions of Americans, however, love can cost them their job. There is still no federal law that comprehensively bans employment discrimination based on sexual orientation or gender identity. 

Advocates have long sought to end such prejudice through the Employment Non-Discrimination Act (ENDA), landmark civil rights legislation that draws upon Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. ENDA would make sexual orientation and gender identity a protected class in nearly every workplace in America, and ensure that lesbian, gay, bisexual and transgender workers are protected from bias and abuse. 

Their efforts, however, have been too little avail. ENDA has been introduced in nearly every Congress for the past two decades and always been defeated. A majority of Americans favour its passage yet Congress refuses to act. 

In the face of this inertia, others have stood up. President Clinton signed an executive order in 1998 protecting federal civilian employees from sexual orientation discrimination, and President Obama later extended this protection to transgender workers. Moreover, some states, localities and businesses have adopted their own anti-discrimination measures. Countless others, however, remain vulnerable. 

Thirty seven US Senators and dozens of pro-equality organisations are now calling on President Obama to continue this incremental approach to reform. They’re asking the President to issue an executive order prohibiting sexual orientation and gender identity discrimination by federal contractors. The President should heed their advice. There is only one metric by which a worker should be judged: skill. 

The effects would be immediate. Federal contractors employ more than a fifth of the US workforce and their services touch upon nearly every aspect of American life. An executive order would guarantee that there is at least some modicum of protection in all 50 states for LGBT employees. 

Decades of evidence demonstrate the need for such protection. Studies have shown that somewhere between 15 percent and 43 percent of gay, lesbian and bisexual workers have experienced employment discrimination of some kind in their lifetime. The number is considerably higher for transgender workers. 

Unconvinced? Consider a recent study. A sociologist sent out pairs of fake resumes in response to more than 1,700 job postings by private employers. The study spanned seven states and five occupations. The only material difference between the resumes was that one listed participation in a gay campus organisation and the other listed participation in a non-gay organisation. Non-gay applicants received roughly 40 percent more interviews than their counterparts. In other words, a heterosexual applicant had to apply to 9 positions to secure an interview, while a gay job-seeker had to apply to 14 positions.  

Evidence has also shown that anti-discrimination laws are effective. States that have adopted their own safeguards independent of the federal government have seen a reduction in wage disparities and employment discrimination across the board. 

“Somewhere between 15 percent and 43 percent of gay, lesbian and bisexual workers have experienced employment discrimination of some kind in their lifetime.”

Many of America’s top businesses, in fact, including hundreds of Fortune 500 companies and numerous defence contractors, have already adopted equal employment protections for LGBT workers. These companies recognised long ago that equality in the workplace attracts top talent, fosters creativity and increases productivity. Forcing workers to suppress love and its many emblems is not just unjust. It’s bad business. 

In the case of federal contractors, it’s also expensive. The US government spends roughly $500bn a year on federal contracts. When contractors base employment decisions on extraneous factors like gender identity and sexual orientation, it costs the American taxpayer. In a time when vital federal programmes are being cut because of budget sequestration, it’s unthinkable that taxpayers are subsidising discrimination. 

The Obama administration has argued that an executive order would undermine broad-based reform. They contend that comprehensive legislation like ENDA is the only way forward.  

Progress, however, is sometimes slow. If Congress is paralysed by partisanship, President Obama must lead. He can look to President Franklin D Roosevelt who signed Executive Order 8802 in 1941, which prohibited racial discrimination by defence contractors. Many consider the 1941 order to be the first major victory of the civil rights movement. He can likewise look to President Clinton’s 1998 Executive Order, which banned sexual orientation discrimination in federal civilian employment.  

In his first term, President Obama embraced his authority as chief-executive and promulgated numerous executive orders. Here, he is presented with a rare and momentous opportunity: the chance to advance the cause of equality in American democracy. An order expanding protections for LGBT workers is clearly within his constitutional power and would pass judicial review. Executive orders are rarely challenged, and only twice in its history has the Supreme Court struck one down. Significantly, neither case implicated anti-discrimination efforts. 

A Presidential order would likewise be embraced by the American people. A recent poll suggests that a majority of voters are in favour of penalising contractors who discriminate against LGBT workers.   

One thing is for certain. Much work remains. In January, an Oregon bakery refused to prepare a wedding cake for a lesbian patron. Last month, a Missouri teenager was told he couldn’t bring his gay partner to prom, a position that was changed only after a public outcry. The Boy Scouts of America is yet to revisit its ban on gay membership, and gay soldiers are still denied burial rights at Arlington National Cemetery. In times like this, we need leadership not abdication. 

Arjun Sethi is a lawyer in Washington, DC, and a frequent commentator on civil rights and social justice-related issues. He has written for the Washington Post, USA Today and CNN, among other publications. 

You can follow Arjun on Twitter @arjunsethi81