Hope and an Executive Order

Despite puzzling inaction, advocates hold out optimism for Obama banning discrimination among federal contractors

By Justin Snow
Published on December 20, 2012, 7:03am | Comments

Sen. Barack Obama was well on his way to winning the Democratic nomination for president in late February 2008. It was more than a month after he had won the New Hampshire primary, delivering a rousing victory speech that solidified ''Yes We Can'' as the slogan of his campaign for president. Although his race against Sen. Hillary Clinton would last into June, his early victories had shaken the Democratic establishment.

It was around that time, on Feb. 25, 2008, that Obama filled out a presidential-candidate questionnaire for the Houston GLBT Political Caucus. Answering a number of questions about his positions on LGBT equality, in question No. 6 Obama was asked if he would support a nondiscrimination policy that includes sexual orientation and gender identity for federal contractors. Obama responded ''Yes.''

President Barack Obama meets with senior advisors

President Barack Obama meets with senior advisors

(Photo by Pete Souza, Whitehouse.gov)

The question referred to the possibility of, as president, signing an executive order long supported by LGBT advocates that would expand workplace protections and prohibit federal contractors from discriminating on the basis of sexual orientation or gender identity.

First signed by President Lyndon B. Johnson, Executive Order 11246 has been expanded by a number of presidents to prohibit federal contractors from discrimination on the basis of race, color, religion, sex and national origin. Obama's response to question No. 6 indicated he would take the next step and expand those protections to include sexual orientation and gender identity.

And yet, as Obama's first term as president comes to a close and more than a month after he was re-elected by a solid majority, movement remains stalled on such an order, with millions of LGBT workers still vulnerable to employment discrimination.

During a Dec. 5 press briefing, White House press secretary Jay Carney provided no new updates on the president's views of the executive order.

''Our position on that hasn't changed,'' said Carney. ''The president supports an inclusive ENDA that would provide lasting and comprehensive protections for LGBT people across the country regardless of whether they happen to work for a government contractor. We look forward to continuing to support that process and that legislation.''

Carney added that the repeal of ''Don't Ask, Don't Tell,'' which secured some Republican support, was a model for how to approach such legislation and indicated the White House continues to take a broader approach to addressing workplace discrimination through federal legislation.

''This president is committed to civil rights and to building on the protections that are necessary for LGBT people as he is for all Americans,'' Carney said.

The executive order would apply to contractors who do more than $10,000 of work with the federal government and affect 26 million workers. What's more, its signage could jumpstart action on one of the final battles of the LGBT-rights movement — the Employment Non-Discrimination Act.

ENDA enjoys widespread Democratic support, including the support of President Obama, and would be all encompassing, banning workplace discrimination on the basis of sexual orientation or gender identity across the nation in public and private workplaces with more than 15 employees. Despite enjoying widespread public support in many polls, ENDA remains stalled in Congress having faced decades of Republican opposition. Indeed, a version of ENDA has been introduced in nearly every session of Congress since 1974.

Many advocates argue that by signing the executive order for federal contractors, Obama could, with the flick of his pen, refocus attention on ENDA.

''The order will give the U.S. Labor Department strong enforcement powers at 22 percent of all jobs in America to seek back wages and reinstatement for LGBT workers who are fired for discriminatory reasons,'' said Freedom to Work President Tico Almeida. ''The order will also trigger national news stories pointing out congressional inaction on this issue, and that will help our movement with one of our biggest ENDA hurdles – the fact that 90 percent of Americans mistakenly believe ENDA has already become law.''

It is a sentiment echoed by Jeff Krehely, vice president of LGBT research at the Center for American Progress, who says Obama's leadership in the form of an executive order would raise the visibility of the problem of LGBT workplace discrimination.

''That would be hugely helpful to ENDA efforts on the Hill, which the White House has made clear it supports,'' Krehely wrote in an email to Metro Weekly. ''Although we know the rates of anti-LGBT discrimination are high, we also know that many Americans already think federal laws exist to prevent and crack down on this type of discrimination.''

Advocates remain confident that the most LGBT-friendly president in American history will take the most obvious next step to advance equality, but they have faced disappointment before.

In April, advocates were informed that Obama did not plan to sign the executive at that time in what was a major blow to many who had been pressuring the White House for months. At the time, advocates said they expected inaction to last until Election Day. But now, with Obama entering his second term, pressure is mounting for action.

Several groups have publicly urged action on the executive order since Obama's re-election, including the Human Rights Campaign, Freedom to Work, the National Gay and Lesbian Task Force and the National Center for Transgender Equality.

According to HRC spokesman Michael Cole-Schwartz, lobbying efforts continue on the executive order as well as on ENDA.

''We continue to press the White House and make clear to them that a federal contractor executive order is a priority of ours and of the community's,'' said Cole-Schwartz. ''The political reality is that there is not an immediate clear path for ENDA's passage and while we continue to work on that, the White House should move forward with an executive order.''

Representatives from various organizations say they hope to see ENDA marked up in the Senate, where Democrats hold the majority, and possibly make it to the floor of the chamber for a vote.

The faces leading the charge on ENDA have changed in recent years. Before his death in 2009, Ted Kennedy was the champion of ENDA in the Senate and Barney Frank, who will retire at the end of this term, led the fight in the House – both Massachusetts Democrats. Now, Sen. Jeff Merkley (D-Ore.) and out Rep. Jared Polis (D-Colo.) have assumed those roles.

Advocates seem confident there will be real movement on ENDA, at least in the Senate, for the first time in years. Earlier this month, Senate Democratic leadership announced the appointment of Sen. Tammy Baldwin (D-Wis.), the chamber's first out member, to the committee on Health, Education, Labor & Pensions, which has primary jurisdiction over ENDA. According to Almeida, Baldwin's presence on the committee could be critical.

''Republican Senators on the HELP Committee are so uncomfortable in openly opposing ENDA that not a single one showed up to the hearing on the bill earlier this year to state their opposition. It will be even tougher for some of those Republican Senators to oppose ENDA when they have to look Senator Baldwin in the eyes while voting against giving LGBT Americans a fair shot to hold a job and build a career,'' Almeida said in an email to Metro Weekly, arguing that Baldwin's voice has a ''real shot to persuade some undecided Senators.''

The immediate focus, however, remains on the executive order. According to a spokesman for Polis's office, the congressman continues to push the White House for the executive order and hopes to see Congress act on ENDA in the coming year.

''Looking at congressional action, we would really like to see ENDA marked up in the Senate, and some attention drawn to the issue and the bill through an executive order could move that process forward,'' said Cole-Schwartz.

With the administration engaged in ''fiscal cliff'' budget negotiations and attention unexpectedly focused on gun control in the wake of the elementary school shooting in Newtown, Conn., advocates say they understand the many issues before the president, but say that these key issues to the LGBT community will find their way to his desk.

''I think right now the President and the White House are rightly focused on the fiscal showdown. A bad outcome on this front could harm LGBT Americans and undo progress on many issues, so LGBT advocates do have a dog in that fight,'' said Krehely, adding, ''At the same time, workplace discrimination has a terrible impact on LGBT people, and it's ridiculous that in 2012 it still hasn't been outlawed. The Administration clearly knows this – their track record on furthering equality for LGBT federal workers proves it – so right now I'm optimistic that this issue will find its way onto the President's crowded plate.''