On July 21, President Obama issued an Executive Order prohibiting federal government contractors from discriminating against lesbian, gay, bisexual, and transgender (“LGBT”) employees. The President directed the U.S. Department of Labor to propose implementing regulations within 90 days.
The order amends Executive Order 11246, originally issued by President Johnson, which prohibits federal contractors from discriminating “against any employee or applicant for employment because of race, color, religion, sex, or national origin.” The new order adds sexual orientation and gender identity to the list of protected categories.
President Obama’s Executive Order also modified Executive Order 11478, issued by President Nixon, to ensure that federal employees are also protected from discrimination on the basis of sexual orientation and gender identity.
As noted by the White House in a fact sheet, “only 18 states and the District of Columbia have laws explicitly protecting LGBT workers from being fired because of their sexual orientation or gender identity, and no federal law adequately protects LGBT workers from being fired because of who they are or who they love.” The fact sheet observed that many — but not all — of the largest federal contractors already prohibit discrimination on the basis of sexual orientation and gender identify. Specifically:
Of the largest 50 federal contractors, which represent nearly half of all federal contracting dollars, 86% prohibit sexual orientation discrimination and 61% prohibit discrimination based on gender identity. In addition, the five top federal contractors, which receive nearly a quarter of all federal contracting dollars, already bar discrimination based on both sexual orientation and gender identity.
The Executive Order did not contain a broad exemption for religious employers, although it did maintain an Executive Order issued by President Bush that allows religiously affiliated contractors to favor individuals of a particular religion when making employment decisions.
LGBT Employees Outside the United States
The current implementing regulations for Executive Order 11246 provide explicit exemption for contracts for work performed outside of the United States by employees who are recruited outside the United States. The new order, therefore, provides no new protections for employees of federal contractors who are recruited and employed outside the United States.
Many U.S.-based employers, including — but not limited to — federal contractors have struggled to effectively recognize and protect the rights of LGBT employees outside the United States in operating environments in which such rights are not protected under law and employees may be subject to considerable discrimination.
An important first step in protecting the rights of all employees is to ensure that corporate policies prohibiting discrimination are applied as consistently as possible across a company’s global workforce. Anchoring Equality, a report published by the Council for Global Equality, observed that most multinationals “have country-specific human resource policies that are implemented in a decentralized fashion.” While companies need to have policies that are consistent with local law, they should also be proactive in responding to discrimination and in promoting inclusive, and rights-protective, workplace policies.
In practice, companies should assess local law in the countries in which they operate and ensure that their workplace policies in those contexts are as rights-protective as possible. A clear statement by the company that it is committed to non-discriminatory practices at a global level can help drive change at the local level. Anchoring Equality identifies a number of steps that companies can take to protect LGBT employees, including advocating for local law reform and allowing employees to avail themselves of transfer opportunities when they are working in contexts that raise safety concerns.
Ultimately, as companies seek to operate with respect for human rights, they should remember that “gay rights are human rights, and human rights are gay rights” as Secretary of State Hillary Clinton observed in a December 2011 speech. In conducting human rights due diligence, companies should consider the ways in which implementation of their workplace policies could either harm or promote the rights of LGBT employees in the countries in which they operate.