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Tuesday, July 22, 2014

LGBT Discrimination by Federal Contractor Banned by Obama

By: Tommy Eden
President Barack Obama on July 21 issued an Executive Order banning sexual orientation and gender identity discrimination by federal contractors. The President's justification for signing the order was, “America's federal contracts should not subsidize discrimination against the American people.”

This recent order amends two existing executive orders. First, by adding to Executive Order 11,246, which applies to federal contractors sexual orientation and gender identity to the list of classes protected from employment discrimination. Second by amending Executive Order 11,478, which applies to federal governmental workers,  to explicitly prohibit gender identity discrimination takes effect immediately. The contractor order is expected to go into effect in early 2015, after the Labor Department's Office of Federal Contract Compliance Programs issues implementing regulations.

This executive order comes less than a month after the U.S. Supreme Court ruled in the Hobby Lobby case that an Affordable Care Act provision requiring employers to pay for certain forms of contraception for workers violated the Religious Freedom Restoration Act as applied to closely held corporations. That Supreme Court opinion left open the question of whether certain closely held corporations can challenge other legal requirements based on religious opposition.

Common Sense Counsel: Expect those challenges to come. The President directed the Secretary of Labor to prepare regulations within 90 days (by October 19, 2014) implementing the new requirements as they relate to federal contractors under Executive Order 11246, enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), requires covered government contractors and subcontractors to undertake affirmative action to ensure that equal employment opportunity is afforded in all aspects of their employment processes. 
The Executive Order will apply to federal contracts entered into on or after the effective date of the forthcoming regulations and could cover contacts as low as $10,000 and contractors with as few as 10 employees. It is time for those covered employers to review their equal employment opportunity and harassment policies for compliance with the Executive Order. Employers who are government contractors should add both sexual orientation and gender identity as protected categories under these policies and check that reporting processes are put in place to ensure that discrimination is not tolerated against LGBT employees. The EEOC Comission ruled in Macy v. Holder on April 20, 2012, that transgender discrimination is discrimination on the basis of “sex” under the Title VII of the Civil Rights Act. Consequently, expect the EEOC in the near future to strongly encourage the same type of non-discriminatory language in all employer policies.
Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter @tommyeden3