On July 21, President Obama issued Executive Order (EO) Number 13672, expanding anti-discrimination responsibilities of federal agencies, federal contractors, and federal grant recipients, to cover “sexual orientation” and “gender identity.” Once implemented, employment practices in these workplaces will match private employers’ responsibilities under a growing number of state laws, and under some federal court cases interpreting Title VII of the Civil Rights Act of 1964 (Title VII). These changes are potentially very important to large numbers of lesbian, gay, bisexual, and transgender (LGBT) workers.
Whether your organization is subject to this new EO, or one of the state or federal provisions it mimics, this is a good reminder to review workplace anti-discrimination policies.
Who is covered by this Executive Order?
This new EO revises two longstanding Presidential EOs, one of which applies to federal agencies and their employees, the other to federal contractors (who do over $10,000 in business with the federal government in one year). Each has been revised over the years, most recently this month.
Federal agencies have been responsible since 1998 for avoiding discrimination based on “race, color, religion, sex, national origin, handicap, age or sexual orientation” (EO No. 11478 of 8/8/69, as revised). This EO adds “gender identity” to the list of prohibitions.
Federal contractors have been responsible to avoid discrimination based on “race, color, religion, sex, or national origin” (EO No. 11246 of 9/24/65, as revised). This month’s EO adds “sexual orientation” and “gender identity.” These provisions are enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP); this month’s EO gives OFCCP 90 days to revise its contracting regulations to incorporate these changes.
Although this EO applies only to federal agencies and qualifying federal contractors, it reflects the latest trends toward expansive interpretation of federal and state sex discrimination laws to protect LGBT people in the workplace. If your organization is not subject to this EO, it’s probably subject to Title VII and/or state laws. Consider the following questions.
Does my organization have a formal policy against sex discrimination?
If so, does it apply to hiring, compensation, fringe benefits and other aspects of employment, and promotions?
If so, does the policy cover female and male workers?
If so, does the policy cover discrimination and harassment based on sexual advances?
If so, does the policy cover gender-based hostility?
If so, does the policy cover discrimination based on pregnancy (including past, present, and potential future pregnancy)?
If so, does it cover sexual orientation?
If so, does it cover gender identity?
Does my organization assign responsibility for preventing, reporting and addressing possible instances of sex discrimination?
If so, are assignments clear, including general responsibilities for all employees and targeted responsibilities appropriate to employees’ positions?
If so, is achievement of these responsibilities part of employees’ performance objectives, reviews and compensation?
Does the organization follow-up appropriately to reporting of possible sex discrimination?
Where Can I Go For More Information?
EO No. 13672 (as published in the Federal Register on 7/23/14)
EEOC website (administers and enforces Title VII and other laws applicable to private employers)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include: