Between a plane downing in Ukraine and a military crisis in Gaza, there’s little doubt President Barack Obama is having a busy week. However, he found the time to deliver some good news to lesbian, gay, bisexual and transgender workers and their allies on Monday when he signed an executive order that will protect LGBT people who work for federal contractors or as federal employees from discrimination.
The new executive order comes in two parts, amending two older orders. The first section adds sexual orientation and gender identity to the list of protected categories of federal contractor employees. The second protects federal employees from discrimination based on their gender identity. Over objections from some quarters, the order does not include a religious exemption for employers.
Obama’s order will cover LGBT workers in a significant part of the American workforce: an estimated 24,000 companies have federal contractor designation, comprising around one-fifth of U.S. workers. For many larger employers with federal contracts, this executive order will probably not necessitate dramatic changes to existing employment and HR policies. According to the White House’s fact sheet on the new executive order, of the top 50 federal contractors, 86 percent prohibit sexual orientation discrimination, and 61 percent have banned discrimination based on gender identity. However, compliance could be more of a challenge for smaller contractors or subcontractors in regions that don’t already have explicit protections for LGBT people.
For employers that are impacted, it’s a good time to take a closer look at the details of existing company policies and practices around discrimination and harassment. “I think that the employers that are covered by this executive order ought to be taking a look at some of their policies, like EEO policies, antiharassment, codes of conduct, to see whether they include sexual orientation, gender identity and expression, and if they don’t, consider adding those as protected categories,” Denise Visconti, office managing shareholder at Littler Mendelson’s San Diego office, told CorpCounsel.com. She added that it’s also important for employers to make certain that their policies are appropriate for those transitioning their gender.
Companies also need to ensure there’s appropriate training available. “Sometimes, you can go through and do a policy review and make sure your policies are complaint, but your policies are only as good as the paper they’re written on,” Visconti said.
Although the executive order does not contain any religious exemptions for federal contractors, it does not eliminate an existing exemption for religiously affiliated contractors to favor candidates of a particular religion when making hiring choices.