
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.
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