Ground Shifts Beneath White House on Federal Contractor Executive Order

Metro Weekly
By Chris Geidner
April 27, 2012

Within two weeks of President Obama’s April 11 decision not to pursue an executive order banning federal contractors from discriminating on the basis of sexual orientation or gender identity “at this time,” Obama and his administration found the ground shift beneath their feet. Changes announced in both the law and the workplace this week draw attention to the protections the order would provide — and the rapidly changing ways that world is looking at those protections.

First, the Equal Employment Opportunity Commission decided, in the case of Mia Macy, that an employer who discriminates against an employee or applicant on the basis of the person’s gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964. The decision was first reported by Metro Weekly on Monday night, April 23.

Although Macy’s case was sent back to the agency to which she had applied — the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) — for further consideration of her specific case, the principle established by the commission applies to all 53 of its field offices.

As such, transgender people can file EEOC complaints against employers who they believe have discriminated against them, as the commission decided, “because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”

Of the decision, a White House official told Metro Weekly on Tuesday, April 24, that “President Obama has long opposed discrimination on the basis of sexual orientation and gender identity in the workplace.” Other questions about the decision were referred to the EEOC.

The next day, on April 25, the Williams Institute released a new report (pdf) showing that the ground also is shifting quickly outside of government in the workplaces of the very federal contractors to whom the executive order would apply.

The report, which updated an October 2011 report on the nondiscrimination policies of federal contractors, concluded: “As of April 2012, 86 percent of the top 50 federal contractors prohibit discrimination based on sexual orientation, and 55 percent prohibit discrimination based on gender identity. While the numbers increased for both categories of anti-discrimination policies, the bigger increase was for the number of top 50 contractors prohibiting gender identity discrimination, for which there was a 29 percent increase from the previous year.”

While the White House has avoided having any officials comment on the record about the executive order this week, others — including Democratic National Committee treasurer Andrew Tobias — have put out opinions urging caution.

Talking with Metro Weekly the day that he published an op-ed in The Advocate — in which he asked, “How much risk should we take to get the order signed this year rather than next?” — Tobias said, “It’s not a frivolous thing to ask: What’s the smartest way for us to win? Do we want to absolutely get an executive order now that lasts for eight months until Romney rescinds it, in case he wins — and it’s going to be a very tough election — or do we want to buy all of the insurance we can to tilt the odds as much as we can toward Obama winning so that when he signs the executive order next year … it has three or four years at least to take effect and we have three or four more years of all this progress?”

He added: “Obviously, in the best of all worlds we would both get the executive order and still win. But, what worries me is that Karl Rove and the Koch brothers are not going to play fair.”

Specifically pointing to North Carolina and Virginia — two states that Obama won in 2008 — Tobias, though, said, “For us to gamble that Karl Rove and the Koch brothers, putting $10 [million] or $20 million of grotesquely unfair, hateful, gender-identity-confusing kinds of ads, that just blast us in the most awful way, that that couldn’t peel off 10,000 or 15,000 votes and cost us the election, some people are willing to take that risk.”

Today, however, Jonathan Lewis, who provided significant funding for Get Equal in 2010 and has provided funding for Freedom to Work and Get Equal this year — replied to Tobias, writing in The Advocate that Tobias’s argument consists of “a series of totally irresponsible doomsday scenarios that have no basis in reality — except maybe if you work for the DNC, have been sent as a messenger for the White House, are still living in the 1990s, or happen to be a wealthy white guy who can wait on securing employment protections for others more vulnerable than yourself.”

Lewis concludes, “Tobias substantiated my worst fears: this decision was based solely on what I called ‘craven election-year politics’ a couple weeks ago upon learning of the announcement.”

Politics or not, the decision by the White House not to pursue an executive order “at this time” was not made in a vacuum. It was, rather, made in a world in which the very foundation on which the decision was made — both in law and in the workplace — is changing by the day.

As agencies assess the impact of the EEOC ruling on their own policies, a White House spokesman did not immediately reply to a request from Metro Weekly asking whether the EEOC decision changes the landscape for consideration of executive action that Obama could take now to address workplace discrimination against LGBT people.

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