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Government Contracts & LGBT Discrimination

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What hiring practices, including LGBT discrimination, are now banned for federal government contractors? President Obama made headlines recently when he issued an Executive Order (EO) banning discrimination against Lesbian, Gay, Bi-Sexual and Transgender (LGBT) by federal employees and contractors.  Before signing the order, the President succinctly summarized his rationale stating “[a]merica's federal contracts should not subsidize discrimination against the American people.”

The Executive Order’s Impact

The EO amends two previously existing Executive Orders.  It adds gender and sexual orientation as protectable classes under an EO signed by President George W. Bush that prohibits employment discrimination by government contractors.  It also adds to another EO so that discrimination based on these classes by federal agencies is explicitly prohibited.

The provisions relating to federal employees go into effect immediately while those related to government contractors don’t go into effect until early next year.  From a legal and practical standpoint, we recommend that contractors, if they are not already, begin following the Order immediately.

The Huffington Post reported that the provision relating to federal contractors will affect “24,000 companies employing roughly 28 million workers, or about one-fifth of the nation's workforce.”  The numbers show both the significance of the Order and of the large role government contracting plays in the US economy.

The EO is also notable for what it does not include, namely, an expansion of the religious related employer exemption.  The Order instead chooses to remain unchanged regarding an existing religious exemption for a narrow class of hiring decisions that was put into place by George W. Bush.

Mixed Reactions

Many applauded the decision as another step in the road towards acknowledging LGBT individuals as a protectable class subject to the rights and protections of the US Constitution and Law.

However, there were some unfavorable reactions, including this commentary from Fox News.  The unfavorable reactions attacked the EO as a whole, and secondarily, the failure to increase the religious exemption.  Those opposing on this ground believe that the EO infringes on the religious freedoms of companies and religious organizations.  A statement on behalf of two northeaster Archbishops went so far as to say that the EO was “unprecedented and extreme and should be opposed."  The Fox News opinion included comparably severe statements including allegations that “this administration believes gay rights trump everyone else’s rights – including religious rights.”

Not all religious institutions and organizations were displeased with the EO.  Some like Catholic Charities’ President were happy that the order did not altogether remove the religious exemption.

State Laws Remain Patch-worked

Currently, approximately 20 states have laws on their books prohibiting workplace LGBT discrimination against  individuals.  The trend over the past years has been towards protection and it is likely that this number will continue to rise.  However, currently the majority of states do not have such laws on the books.  Thus, the legal obligations of a company conducting business with a state government or solely within a state may be different than for those contracting with the federal government.

For More on Government Contracting

Continue to check this blog or contact the attorneys at Whitcomb Law, P.C. to discuss your government contracting or procurement plans.

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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