President Obama to Use His “Pen and Phone” to Expand LGBT Workplace Protections

June 2014 is Lesbian, Gay, Bisexual, and Transgender (LGBT) Pride month, and President Obama is set to mark the month by using his “pen and phone” approach to expand workplace protections for LGBT individuals. Frustrated with the inability to get various employment-related laws through Congress, President Obama has taken to using his executive authority to make progress where he can – primarily with federal government contractors.  So far this year, President Obama has issued executive orders raising the federal minimum wage for federal contractors and requiring contractors to pay women equal pay for equal work. The President’s latest move will be to issue an executive order prohibiting employment discrimination based on LGBT status by federal contractors and subcontractors who do over $10,000 in business with the government in any one year.

President Obama’s executive order has been a possibility for some time, but was delayed while the President tried to push for passage of the Employment Non-Discrimination Act (ENDA). ENDA would have make it illegal under federal law for most employers – not just federal contractors – to discriminate based on real or perceived sexual orientation or gender identity. Because ENDA has stalled in Congress, President Obama is reverting to the use of his “pen and his phone.”

At least one commentator has referred to President Obama’s upcoming executive order as the single largest expansion of LGBT workplace protections in this country’s history. It is estimated that the executive order will affect about 16 million employees of federal contractors and subcontractors. Others have commented, however, that the executive order may have limited practical effect given that many of the nation’s fortune 500 companies and top federal contractors already include sexual orientation in their nondiscrimination policies. In addition, it is important to remember that, while there is no federal law generally prohibiting employment discrimination based on LGBT status, a number of states - including Minnesota – have such laws. Minnesota’s anti-discrimination protections for LGBT workers apply to all Minnesota employers regardless of size.

Whatever your view on the potential workplace impact of President Obama’s executive order, it is coming at a time of other expansions of LGBT rights in the workplace. Last year, the US Supreme Court held that it was unconstitutional for the federal Defense of Marriage Act (DOMA) to define marriage as only between a man and a woman. As a result, the federal Family and Medical Leave Act (FMLA) now protects same-sex spouses in states where same-sex marriage is lawful, and same-sex couples also have greater protections to participate in employee benefit plans. Same-sex couples currently have the legal right to marry in Washington D.C. and at least 19 other states, including Minnesota. In addition, legal rulings are pending in over 10 states on whether same-sex couples have the legal freedom to marry in those states.

In light of all this activity, employers would be well-served to double check their employment law compliance obligations and, as applicable, to update their workplace policies and practices.