Extensive Research Supports the Need, Effectiveness, and Stability of an Executive Order Requiring Federal Contractors to Not Discriminate Against LGBT Employees

For Immediate Distribution

Contact:
Brad Sears, Executive Director, (310) 267-4382,  sears@law.ucla.edu
M.V. Lee Badgett, Research Director, (310) 904-9761,  Badgett@law.ucla.edu
Nan Hunter, Legal Scholarship Director,  NDH5@law.georgetown.edu

Earlier this week, the Obama administration announced that it would not issue an executive order barring federal contractors from discriminating on the basis of sexual orientation and gender identity “at this time.”

In explaining the decision, administration officials have indicated that they are pursuing legislation, the Employment Non-Discrimination Act (ENDA) because they view it as a more permanent solution.  In addition, they have indicated that more research is needed.  Yesterday, White House Press Secretary Jay Carney said the Administration and stakeholders needed to build “a body of persuasive evidence that this is the right thing to do.”

“A vast body of research already exists to support protections for LGBT people in the workplace,” says Brad Sears, Assistant Dean and Executive Director of the Williams Institute at UCLA School of Law.  “This research shows that LGBT people continue to face high rates of discrimination in the workplace; that an executive order would protect 16.5 million more workers; that these protections benefit the corporate bottom line, and that the executive order would  meet little to no resistance from contractors.”

Williams Institute research related to the Executive Order include:

•    For more than seventy years, Presidents have issued executive orders requiring workplace protections from discrimination, including employees of federal contractors.  These orders have not been overturned by courts, Congress, or subsequent Presidents.
•    A federal executive order that requires contractors to prohibit discrimination based on sexual orientation and gender identity would protect up to 16.5 million more workers.
•    More than ninety percent of the country’s largest companies, including federal contractors, state that diversity policies are good for their corporate bottom line.
•    Among the top 50 federal contractors, 81% include sexual orientation in their non-discrimination policies and 44% include gender identity.
•    Among the largest private defense contractors, state laws or private policies already cover 95% of employees against sexual orientation discrimination, 69% of employees against gender identity discrimination.
•    Ordinances that require city and county contractors to prohibit sexual orientation and gender identity discrimination do not burden governments or businesses.
•    As recently as 2008, the GSS, a national probability survey representative of the U.S. population, found that 27% of LGB respondents had experienced at least one form of sexual orientation-based discrimination during the five years prior to the survey.
•    When surveyed separately, transgender respondents report even higher rates of employment discrimination and harassment than LGB people. In a 2011 survey, 78% of respondents in the largest survey of transgender people to date reported experiencing at least one form of harassment or mistreatment at work because of their gender identity.

Executive orders requiring discrimination protections for employees of federal contractors have not been overturned by courts, Congress, or subsequent Presidents

The Williams Institute has conducted an extensive legal analysis of executive orders prohibiting discrimination by federal contractors.   For more than seventy years, presidents have used executive orders to advance workplace protections against discrimination. In 1941, Roosevelt issued an executive order that forbade discrimination against any worker because of “race, creed, color or national origin” by companies receiving government defense contracts and vocational training programs.  This executive order was the first step by the federal government to prohibit discrimination by private employers – two decades after Congress passed the Civil Rights Act of 1964.

“In reviewing the long legal history of executive orders applying to federal contractors, no court has ever overturned an order for prohibiting contractors from discriminating against protected workers, Congress has never repealed such an order through legislation, and no President has ever removed a protected class of workers that a prior President included in the order,” says Nan Hunter, Williams Institute Legal Scholarship Director and Georgetown Law Center Professor of Law. “After considering the law in this area, our conclusion is that the legal authority for the President to issue such an executive order is well-established, and that the order would not be vulnerable to legal challenge.”

Executive Order Would Extend Workplace Protections to 16.5 Million Employees

A federal executive order that requires contractors to prohibit discrimination based on sexual orientation and gender identity would protect up to 16.5 million more workers than are already protected by state or private anti-discrimination policies, according to a Williams Institute study released in February 2012.

The study also suggests that an executive order would not disproportionately burden defense and small business contractors. Among the largest private defense contractors, state laws or private policies already cover 95% of employees against sexual orientation discrimination, 69% of employees against gender identity discrimination, and provide 81% of employees with access to benefits for a same-sex partner.

Further, no heavier burden is placed on small businesses, because existing anti-discrimination policies already equally cover employees in small, medium, or large federal contractors, with the exception of higher rates of coverage for Fortune 1000 employees.

The findings in this study are based on 2009 data from the Equal Employment Opportunities Commission’s EEO-1 reports. These reports are required for private sector federal contractors with 50 or more employees and a contract of at least $50,000.

Research Shows Non-Discrimination Polices Benefit the Corporate Bottom Line

Research also shows that the executive order would benefit not only employees, but federal contractors and, as a result, the federal government.  A Williams Institute study released in the fall of 2012 found that more than ninety percent of the country’s largest companies state that diversity policies are good for their corporate bottom line.

The study was based on a review of statements issued by the top 50 Fortune 500 companies and the top 50 federal contractors when they first put these policies in place.  Among the top 50 federal contractors, 81% include sexual orientation in their non-discrimination policies and 44% include gender identity.

“The specific reasons why these companies felt their LGBT inclusive policies had a positive business impact went beyond improving their efforts to recruit and retain the most talented employees,” said Brad Sears. “Companies linked these policies to improving employee morale and productivity, to meeting the needs of their diverse customers, and to sparking ideas and innovation through employees, including LGBT employees, who bring different perspectives and experiences.”

Prohibiting Discrimination Against LGBT Employees by Federal Contractors Does not Burden Contractors or Government Agencies

According to a study by the Williams Institute forthcoming in the Albany Government Law Review this spring, ordinances that require city and county contractors to prohibit sexual orientation and gender identity discrimination do not burden governments or businesses.

The study evaluated data from twenty-nine city and county government agencies that require local government contractors to adopt sexual orientation and gender identity employment non-discrimination policies.  The local governments in the study reported widespread compliance among contractors and very little, if any, resistance to adopting LGBT-related employment policies. Further, no locality reported that any employees had filed complaints of sexual orientation or gender identity discrimination after the policies were implemented.

“This study provides evidence that a federal executive order that similarly barred discrimination could protect millions of workers while not overburdening federal contractors or the U.S. government,” said the study’s co-author, Christy Mallory, Legal Fellow, Williams Institute.

The survey responses also indicate that the laws are not burdensome or costly for the agencies to implement and enforce. No locality reported that it had to hire additional staff to enforce these ordinances, or that there was any cost associated in adding sexual orientation and gender identity to existing non-discrimination policies and practices.

Research Shows LGBT Employees Continue to Face High Levels of Discrimination in the Workplace

In 2009,  the  Williams Institute  presented a study during a congressional hearing on ENDA documenting discrimination against LGBT people in all fifty states.  The 1,500 report, summarizing survey data, court and administrative cases and complaint, and over a dozen others types of research, found that LGBT people continue to face “persistent and pervasive pattern of discrimination in the workplace.”

A 2011 update to that study includes the following findings:

•    As recently as 2008, the GSS, a national probability survey representative of the U.S. population, found that 27% LGB respondents had experienced at least one form of sexual orientation-based discrimination during the five years prior to the survey.
•    Not surprisingly, more than one-third of these LGB respondents were not out to anyone at work.
•    When surveyed separately, transgender respondents report even higher rates of employment discrimination and harassment than LGB people.   In a 2011 survey, 78% of respondents to the largest survey of transgender people to date reported experiencing at least one form of harassment or mistreatment at work because of their gender identity.  More specifically, 47% had been discriminated against in hiring, promotion, or job retention.