Fine Print, Enforcement Key to Obama Job Bias Order's Effectiveness

With the White House preparing to add sexual orientation and gender identity to a 1965 executive order that bars discrimination by federal contractors, the question becomes how effective the US Department of Labor –– which will investigate complaints brought under the amended order –– is at handling discrimination complaints.

“Generally speaking, it tends to be successful,” said Lawrence Z. Lorber, senior counsel in the labor and employment practice at Seyfarth Shaw LLP, a law firm. “When I say successful, it tends to be in the more intensive investigations.”

The executive order covers an estimated 22 percent of the work force and is enforced by the Labor Department. Currently, the order bars discrimination based on race, color, religion, sex, national origin, disability, and veteran status.

Lorber was an assistant secretary in the Labor Department and headed that agency’s Office of Federal Contract Compliance Programs (OFCCP), which will likely investigate any complaints charging discrimination based on sexual orientation or gender identity.

The OFCCP has a memorandum of understanding with the Equal Employment Opportunity Commission (EEOC) that allows the OFCCP to send individual discrimination complaints there. Sexual orientation and gender identity are not protected classes in any federal statute. It is not clear that the EEOC could address such complaints, though a 2012 EEOC finding that a gender identity discrimination claim would be handled under provisions of the 1964 Civil Rights Act banning discrimination on the basis of sex may allow for flexibility there.

Asked if an employee at a federal contractor alleging sexual orientation or gender identity discrimination could be referred to the EEOC by the OFCCP, Lorber said, “I don’t believe so,” explaining that such a complaint is “not within the authority of the EEOC to investigate.”

Allowing the EEOC to address such a complaint would be a “de facto enactment of [the Employment Non-Discrimination Act, or ENDA],” Lorber said. That legislation, which would ban discrimination based on sexual orientation and gender identity by all employers with 15 or more employees, passed the Senate last year and is pending in the House, where it is not expected to get a vote.

The OFCCP tends to investigate systemic compensation and discrimination issues at federal contractors.

“The agency generally focuses its attention on the more macro complaints,” Lorber said. Where a complaint represents a “systemic issue underlying the complaint,” the OFCCP is at its best, he said. “In that instance, it does very well,” according to Lorber.

The executive order does not allow an individual to sue an employer in federal court, making the Labor Department the likely sole arbiter of any complaints alleging discrimination based on sexual orientation or gender identity.

“There is no private right of action under the executive order,” Lorber said. “That’s an important fact to consider here.”

The Obama administration leaked the news of the proposed change to the 1965 executive order on June 16. LGBT groups, particularly Freedom to Work, have been demanding the amendment for years. While groups welcomed the news, there was also some caution in their views as they have yet to see the order’s language.

“The White House statement today is promising, and we look forward to seeing the details of the executive order,” Chad Griffin, the president of the Human Rights Campaign, said in a written statement.

The possibility that the order might include a religious exemption that would exempt too many employers has raised concerns for some advocates.

“It is now vitally important for all of us to insist that this executive order, when eventually signed by the president, does not include religious exemptions that would permit taxpayer dollars to be spent on discrimination,” Heather Cronk, co-director of GetEQUAL, said in a release.

Within hours of the White House signaling its intention to move forward on the executive order, Utah Republican Senator Orin Hatch told the Washington Blade that he would expect to see the same religious exemption that is included in the version of ENDA he voted for last year as part of the Obama order. That exemption has been criticized by many LGBT advocacy groups.