An Executive Order to Prevent Discrimination Against LGBT Workers

7/29/2019 An Executive Order to Prevent Discrimination Against LGBT Workers

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An Executive Order to PreventDiscrimination Against LGBT WorkersLee Badgett, Crosby Burns, Nan D. Hunter, Jeff Krehely, Christy Mallory, and Brad Sears

February 19, 2013

Under ederal law i is enirely legal o re someone based on his or her sexual oriena-

ion or gender ideniy.1 A he same ime, lesbian, gay, bisexual, and ransgenderor

LGBAmericans repor widespread discriminaion in he workplace, which orcesmany o hem ino he ranks o he unemployed and leaves hem wihou an income

o pay he morgage, buy groceries, and oherwise make ends mee. Workplace dis-

criminaion is no only a problem or workersi also presens problems or busi-

nesses by inroducing ineciencies and coss ha cu ino pros and undermine

businesses botom lines.

While many saes, municipaliies, and corporaions have insiued policies ha

shield LGB workers rom workplace bias, LGB individuals currenly lack adequae

legal proecions rom employmen discriminaion. In ac, a majoriy o workers cur-

renly live in saes ha have no passed laws giving LGB workers legal proecionsrom workplace discriminaion.

Te Employmen Non-Discriminaion Ac would bring uniorm proecions o all

workers. I passed, he law would require ha all Americans be judged in he work-

place based on heir skills, qualicaions, and he qualiy o heir workno on job-

irrelevan characerisics such as heir sexual orienaion or gender ideniy.2

Shor o a ederal law, however, Presiden Barack Obama can ake a signican sep

oward combaing discriminaion agains our naions LGB workers. Te presiden

can issue an execuive order ha prohibis ederal conracors rom discriminaing a

all levels o employmen based on sexual orienaion and gender ideniy. Research

indicaes ha he execuive order would have a posiive impac on workers, busi-

nesses, and he ederal governmen.

1 Center or American Progress and the Williams Institute | An Executive Order to Prevent Discrimination Against LGBT Workers


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LGBT Americans experience high rates of discrimination and harassment

in the workplace

LGB employees coninue o ace widespread discriminaion and harassmen in he

workplace. Sudies show ha anywhere rom 15 percen o 43 percen o gay, lesbian,

and bisexual people have experienced some orm o discriminaion and harassmen in

he workplace.3 Specically, 8 percen o 17 percen o LGB workers repor being passedover or a job or red because o heir sexual orienaion or gender ideniy; 10 percen

o 28 percen received a negaive perormance evaluaion or were passed over or a pro-

moion because hey were LGB; and 7 percen o 41 percen o LGB workers encoun-

ered harassmen, abuse, or anigay vandalism on he job.

ransgender workers in paricular experience high raes o employmen discriminaion.

An asonishing 90 percen o ransgender people repor some orm o harassmen or

misreamen on he job or repor having aken some acion such as hiding who hey are

o avoid i.4 Nearly hal o ransgender people surveyed also repored experiencing an

adverse job oucome because o heir gender ideniy. Tis includes being passed overor a job (44 percen), red (26 percen), and denied a promoion (23 percen). As wih

LGB employees, raes o employmen discriminaion are especially pronounced among

ransgender people o color.5

Anecdoal evidence also reveals ha LGB people encouner pervasive discriminaion

and harassmen on he job. Vandy Beh Glenn o Alana, Georgia, los her job wih he

Georgia General Assembly aer her boss red her or being ransgender.6 Brook Wais

o Dallas, exas, was immediaely le go aer her manager saw a picure on Waiss cell

phone o she and her girlriend kissing on New Years Eve. 7 Ocer Michael Carney was

denied reinsaemen as a police ocer in Springeld, Massachusets, because he oldhis supervisors ha he was gay.8

Discrimination has a negative impact on both LGBT employees and

their employers

Widespread discriminaion agains LGB workers imposes nancial hardships on LGB

Americans and heir amilies and can negaively aec workers physical and menal healh.

In erms o economic securiy, discriminaion conribues o job insabiliy, employee

urnover, and unemploymen, leaving LGB people wihou a seady income o

suppor hemselves and heir amilies. Losing a job may also mean losing access o

employer-sponsored healh insurance. Wihou aordable coverage, many LGB

workers mus purchase cosly plans in he privae-insurance marke or oher wise

orgo coverage, which pus hese workers and heir amilies a subsanial nancial risk

should someone all seriously ill.

http://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdf


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Research conrms ha amilies headed by same-sex couples suer rom signican eco-

nomic insecuriies ha are likely o be relaed o employmen discriminaion. Conrary

o commonly held sereoypes, amilies headed by same-sex couples make on average

$15,500 less per year han amilies headed by opposie-sex couples, according o Census

daa. 9 Similarly, children being raised by same-sex parens are wice as likely o live in

povery as children being raised by married opposie-sex parens.10 Aer a lieime o

discriminaion, older lesbian aduls experience higher povery raes han heir heero-sexual counerpars, as do Arican American same-sex couples.11

ransgender individuals ace especially harsh employmen and economic insecuriies

due o high levels o workplace discriminaion.12 Compared o he general popula-

ion, ransgender individuals are wice as likely o be unemployed and our imes as

likely o have very low incomes; nearly 20 percen have been or are currenly homeless.

Approximaely 6 in 10 ransgender people repor annual incomes below $25,000.13

Discriminaion can also negaively aec workers menal and physical healh. High

levels o discriminaion among LGB people have been linked o poor healh oucomes,including higher raes o having a psychiaric disorder, poorer menal healh, curren

psychological disress, depression, loneliness, and low sel-eseem.14 Tese healh dis-

pariies are likely o be relaed o lower levels o healh insurance coverage and minoriy

sress and sigma, boh o which can resul rom workplace discriminaion.

In addiion o having a negaive impac on LGB individuals and heir amilies, discrimi-

naory pracices can also harm businesses ha allow discriminaion o go unchecked.

Employmen discriminaion based on sexual orienaion and gender ideniy inhibi an

employers abiliy o recrui qualied employees. Similarly, employmen discriminaion

needlessly orces qualied employees ou o jobs, which consequenly inroduces a hos ocosly urnover-relaed expenses. Hosile work environmens may depress workorce pro-

duciviy and job perormance, close businesses o o atracive consumers and cos-e-

cien suppliers in he markeplace, and expose companies o poenially cosly liigaion.15

A majority of LGBT Americans lack legal protections against

employment discrimination

Currenly, a pachwork o sae and local laws and regulaions oer some legal proec-

ions o LGB workers.16 weny-one saes and he Disric o Columbia prohibi

employmen discriminaion on he basis o sexual orienaion, and 16 o hose saes

and he Disric o Columbia also prohibi discriminaion on he basis o gender iden-

iy. A leas 175 municipaliies have enaced local ordinances prohibiing discriminaion

among public and privae employers on he basis o sexual orienaion, wih a leas 135

o hese municipaliies including gender ideniy as a proeced characerisic.17



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In addiion o nondiscriminaion prohibiions, some sae and local governmens have

implemened requiremens or governmen conracors o comply wih sexual-oriena-

ion and gender-ideniy nondiscriminaion ordinances. More han 60 municipaliies

have ordinances ha specically prohibi local governmen conracors rom discrimi-

naing on he basis o sexual orienaion, and approximaely 40 municipaliies also

prohibi local conracors rom discriminaing on he basis o gender ideniy.18

While hese policies oer signican proecions o many workers, a majoriy o LGB

workers lack any legal proecion rom employmen discriminaion under sae law. Only

45 percen o American workers live in a jurisdicion where hey are covered by a nondis-

criminaion policy based on sexual orienaion.19 Only 34 percen o workers live in a juris-

dicion where hey are covered by a nondiscriminaion policy based on gender ideniy.20

President Obama can issue an executive order prohibiting

discrimination by federal contractors

Te Employmen Non-Discriminaion Ac would bring uniorm proecions o all

American workers under ederal law. Shor o such a law, however, Presiden Obama has

he auhoriy o exend signican proecions o he LGB workorce. Specically, he

presiden can eiher amend a curren execuive order or issue a separae execuive order

o prohibi ederal conracors rom discriminaing in employmen on he basis o sexual

orienaion and gender ideniy.

Daing back o World War II, presidens rom boh poliical paries have used heir

power as he chie execuive o prohibi companies doing business wih he ederal

governmen rom discriminaing agains employees based on cerain nonwork-relaedcharacerisics.21 In is curren orm, Execuive Order 11246 prohibis ederal conrac-

ors rom discriminaing on he basis o race, color, religion, sex, or naional origin.22

Exising policy does no, however, explicily prohibi hese businesses rom discrimina-

ing agains employees based on heir sexual orienaion or gender ideniy.

Exending Execuive Order 11246 o include nondiscriminaion policies based on

sexual orienaion and gender ideniy would give subsanive workplace proecions o

a signican number o LGB Americans. Currenly, ederal conracors legally bound

o comply wih Execuive Order 11246 employ 28 million individualsor approxi-

maely 22 percen o all U.S. civilian workers.23

Presiden Obama has he auhoriy o issue such an execuive order even hough

he Employmen Non-Discriminaion Ac has no ye been passed by Congress.

Hisorically, Execuive Order 11246 is par o a series o execuive orders in which pas

presidens made workplace nondiscriminaion compliance a condiion o ederal con-

racs beore Congress ended up passing ederal saues applying similar requiremens



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more generally. Te Civil Righs Ac o 1964, or example, which legally prohibied

nearly all employers rom discriminaing agains employees on he basis o race, was

buil upon execuive orders signed by Presidens Franklin D. Roosevel and Dwigh D.

Eisenhower ha prohibied conracors rom discriminaing on he basis o race.24 An

execuive order or LGB workers could be similarly issued beore congressional pas-

sage o he Employmen Non-Discriminaion Ac.

An executive order would give significant protections to LGBT workers

Including sexual orienaion and gender ideniy in Execuive Order 11246s exising

nondiscriminaion requiremens would give he governmen signican enorcemen

powers o comba discriminaion agains LGB workers. Currenly, he Deparmen o

Labors Oce o Federal Conrac Compliance Programs is charged wih ensuring ha

conracors comply wih nondiscriminaion requiremens, among oher responsibiliies.

I generally invesigaes complains o discriminaion ha are led agains ederal con-

racors by a group o employees. Te oce can hen reach a setlemen wih employerswho are ound in violaion o Execuive Order 11246, or i can pursue enorcemen

acion beore an adminisraive law judge or in ederal cour.25

Trough is enorcemen eors, he oce has been successul in securing back pay,

salary, and benes or employees who have been discriminaed agains by heir ederal-

conracor employers. In 2009 22,000 employees led discriminaion complains wih

he Oce o Federal Conrac Compliance Programs, which conduced 4,160 compli-

ance evaluaions and obained 94 setlemens oaling more han $9 million.26 In 2008

he oce secured more han $67.5 million in back pay, salary, and benes or 24,508

employees who had been subjec o unlawul employmen discriminaion under hecaegories currenly included in Execuive Order 11246.27

Te vas majoriy o conracors are complying wih Execuive Order 11246. In scal

year 2010he year or which he mos recen daa is availablehe Oce o Federal

Conrac Compliance Programs conduced compliance evaluaions on 4,960 conrac-

ors based on poenial evidence o discriminaion. O hose conracors, i ound

only 1,071 conracors in violaion o Execuive Order 11246. Ou o approximaely

175,000 oal ederal conracors in 2010, i ound only 0.61 percen o be in violaion

o Execuive Order 11246.28

Even wih hese subsanial workplace proecions, an execuive order or ederal conrac-

ors would sill be needed i Congress were o pass he Employmen Non-Discriminaion

Ac oday. Te law as currenly writen would only apply o employers wih 15 or more

employees. Execuive Order 11246, however, applies o businesses o any size ha receive

a governmen conrac in excess o $10,000. A ederal-conracor execuive order ha

includes sexual orienaion and gender ideniy would hereore exend workplace proec-



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ions or LGB workers in smaller companies doing business wih he ederal govern-

menworkers who would oherwise no be covered under he law.

Many contractors have already adopted nondiscrimination policies

Te Williams Insiue recenly analyzed he companies wih nondiscriminaion poli-cies ha include sexual orienaion and gender ideniy. Ta analysis demonsraes

ha more ederal conracors han nonconracors already have employmen proec-

ions or LGB workers, so an execuive order would no drasically aec many o

he companies ha already do business wih he ederal governmen. Te high-level

ndings rom his analysis include:

Among ederal conracors, a leas 61 percen o heir employees are already covered

by laws or privae policies proecing agains sexual-orienaion discriminaion.29

Among ederal conracors, a leas 41 percen o heir employees are already coveredby laws or privae policies proecing agains gender-ideniy discriminaion.30

Requiring ederal conracors o have policies proecing agains sexual-orienaion

discriminaion would provide proecions o an addiional 11 million U.S. workers;

16.5 million more would be proeced rom gender-ideniy discriminaion.31

Furhermore, he larges ederal conracorson which mos ederal conracing dollars

are spenare even more likely o already prohibi discriminaion on he basis o sexual

orienaion and gender ideniy.

Te op ve ederal conracors are all deense conracorsLockheed Marin,

Boeing, Rayheon, General Dynamics, and Unied echnologies. ogeher, hey

receive abou a quarer o all ederal conracing dollars.32 All ve have nondiscrimina-

ion policies ha include sexual orienaion and gender ideniy.33

Nearly all o he op 50 ederal conracors (90 percen) already include sexual orien-

aion in heir nondiscriminaion policy. Mos (67 percen) include gender ideniy.34

Looking a employees o ederal conracors ha are in he Forune 1000, 92 percen

are already proeced by a companywide sexual-orienaion nondiscriminaion policy,

and 58 percen are already proeced by a gender-ideniy nondiscriminaion policy.35



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The majori ty of companies believe that nondiscr imination policies will

improve their bottom line

A Williams Insiue analysis o corporae saemens addressing nondiscriminaion poli-

cies indicaes ha companies oen adop hese policies as a sound business decision.36

O he op 50 ederal governmen conracors and he op 50 Forune 500 companies,

he majoriy specically link policies ha prohibi sexual-orienaion and gender-ideniydiscriminaion o improving heir botom line. Companies mos oen cied he ollowing

economic benes garnered rom hese policies:

Recruiing and reaining he bes alen, giving heir company a compeiive advanage

in he markeplace

Generaing he bes ideas and innovaions by drawing on a workorce wih a wide

range o characerisics and experiences

Increasing produciviy among employees by making hem eel valued andcomorable a work

Atracing and beter serving a diverse cusomer base hrough a diverse workorce

Securing business by responding avorably o specic policy requess or requiremens

rom cliens

Mainaining posiive employee morale and relaions by responding avorably o

specic policy requess rom employees and unions37

A majority of small businesses already prohibit discrimination against

LGBT employees at little to no cost to employers

In Sepember 2011 he Cener or American Progress elded a survey o small busi-

nessesdened as having beween 3 and 100 employeesha revealed ha a majoriy

o hem already prohibi discriminaion on he basis o sexual orienaion and gender

ideniy. Sixy-nine percen o small businesses prohibi discriminaion on he basis o

sexual orienaion, and 62 percen do so on he basis o gender ideniy.38

Furhermore, a majoriy o hose businesses repor experiencing ew o no coss

associaed wih hese policies. Looking a he majoriy o small businesses ha already

prohibi discriminaion agains gay employees, 67 percen said ha here were zero coss

associaed wih he iniial inclusion o sexual orienaion wihin heir nondiscrimina-

ion policies. O he 25 percen o companies ha said here were coss associaed wih

implemenaion, 65 percen said hose coss represened less han 1 percen o annual



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operaing coss.39 Even ewer o hese small businesses cied coss associaed wih main-

aining heir companys sexual-orienaion nondiscriminaion policy in he medium and

long erm. Eighy percen said ha here were no coss associaed wih mainaining heir

policy prohibiing discriminaion agains gay workers.40

ransgender-inclusive policies are similarly inexpensive. Looking a he 62 percen o small

businesses ha already prohibi discriminaion agains ransgender employees, 68 percensaid here were no coss associaed wih he implemenaion o his policy. O he minor-

iy o businesses22 percenha said here were coss, 76 percen said ha hose coss

represened less han 1 percen o annual operaing coss.41 Small business owners also

repor zero or insignican coss associaed wih mainaining heir policy agains gender-

ideniy discriminaion. Seveny-six percen said ha here were no coss associaed wih

mainaining heir policy prohibiing discriminaion agains ransgender workers.42

O hose small businesses ha do no prohibi discriminaion based on sexual oriena-

ion, only 2 percen said coss deerred hem rom oering proecions o LGB employ-

ees. Only 4 percen cied coss as a deerren o prohibiing discriminaion on he basiso gender ideniy. Mos businesses, however, said ha hey simply never hough o

adop hese policies, or ha hey did no have LGB employees currenly in heir work-

place. Coss were no a acor.43

Americans support an executive order that expands existing

nondiscrimination requirements for federal contractors

Nearly hree-ourhs73 perceno voers in a poll commissioned by he Cener

or American Progress suppored proecing LGB people rom workplace discrimina-ion.44 Tis suppor cus across poliical pary aliaion, wih 81 percen o Democras,

74 percen o Independens, and 66 percen o Republicans supporing nondiscrimina-

ion laws or LGB people in he workplace. Looking a key demographic groups, 74

percen o Caholics and 61 percen o senior voers solidly avored employmen proec-

ions or LGB people. Even among voers who ideniy hemselves as eeling generally

unavorable oward gay people, a ull 50 percen suppored workplace nondiscrimina-

ion proecions or he LGB populaion.

In addiion o supporing he Employmen Non-Discriminaion Ac, a signican

majoriy o voers specically avor exending workplace proecions o LGB work-

ers hrough an execuive order. Seveny-hree percen o likely 2012 voers suppored

he idea o Presiden Obama issuing an execuive order ha would require all compa-

nies doing business wih he ederal governmen o adop policies ha proec LGB

workers rom discriminaion. A majoriy o voers across pary aliaions suppors

such an order: 86 percen o Democras, 70 percen o Independens, and 61 percen o

Republicans would avor his acion. Only 9 percen o voers opposed he policy.45



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Tese recen polls on an execuive order are consisen wih decades o opinion polls

relaed o LGB righs. Since a leas he early 1980s, a majoriy o Americans have sup-

pored equal righs and opporuniies or LGB people in he workplace.46 Polling ques-

ions abou ransgender workers have only been asked recenly, bu he CAP poll shows

ha voers suppor ransgender proecions a almos he same rae as hey suppor gay

proecions. Seveny-ve percen o likely voers, or example, said hey avored proec-

ing gay and lesbian people rom discriminaion in employmen, while 73 percen saidhey avored hese proecions or gay, lesbian, and ransgender people. Te responses

are essenially saisically idenical.47

Te CAP survey also ound ha 9 o ou 10 voers misakenly hink ha a ederal law

is already in place o proec LGB people rom workplace discriminaion. A similar

number o voers also did no know wheher heir sae had a LGB workplace-discrim-

inaion law. Tese numbers show he signican disconnec beween voer percepions

abou workplace proecions and he realiies ha LGB people ace on he job.48

Small business owners also express srong suppor or LGB nondiscriminaion lawsand policies. CAPs poll o small business owners and leaders ound ha 63 percen

o small businesses suppor he passage o he Employmen Non-Discriminaion Ac

passage. Only 15 percen o small business owners were opposed o i. CAP also asked

specically abou an execuive order prohibiing ederal conracors rom discrimina-

ing agains heir LGB employees. Fiy-six percen said hey would suppor Presiden

Obama were he o issue such an execuive order.49

LGBT nondiscrimination protections can be implemented with minimal

administrative cost and burden

A number o ciies have already passed ino law ordinances ha require conracors o

adop LGB-inclusive nondiscriminaion policies in order o be eligible or municipal

conracs. A Williams Insiue survey o municipal jurisdicions wih hese policies

shows ha governmens can implemen nondiscriminaion requiremens or conrac-

ors wih minimal adminisraive cos and burden.

Te vas majoriy o he localiies surveyed repored almos uniorm compliance wih

he conracor ordinances wih litle o no conracor resisance.50 weny-ve o he 29

localiies ha provided inormaion abou heir nondiscriminaion ordinances repored

ha conracors complied wih he sexual orienaion and gender-ideniy requiremens

wihou resisance. Tree o he 29 localiies repored minimal resisance a rs; he con-

racors, however, agreed o comply when he requiremens were explained o hem.

O all he localiies ha responded o he survey, only wo repored individual enorce-

men invesigaions or acions or violaions o hese conracor requiremens, and hese

http://lgbtmap.org/file/momentum-report-2009.pdfhttp://lgbtmap.org/file/momentum-report-2009.pdf


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localiies repored only one such insance each. weny-eigh o he 29 localiies repored

ha no complains o sexual-orienaion or gender-ideniy discriminaion had been

led under heir nondiscriminaion ordinances. Te remaining localiy was unaware o

wheher any complains had been made because discriminaion complains were handled

by a sae agency raher han he local agency implemening he conracor requiremens.

Addiionally, none o hese localiies repored ha conracors had been barred rom bid-

ding on uure conracs because hey a one poin did no comply wih hese ordinances.51

Tis evidence suggess ha such policies also imposed litle o no burden on govern-

mens. Te municipal conracor requiremens have been adoped, implemened, and

enorced wih litle disrupion o governmen operaions or work, adminisraive bur-

den, cos, or liigaion. No localiy repored ha any o hese ordinances made i dicul

o nd qualied conracors o carry ou governmen work or operaions. None o he

localiies ha added sexual orienaion and gender ideniy o nondiscriminaion ordi-

nances repored ha doing so was adminisraively burdensome or resuled in addiional

adminisraive or conracor coss. Local governmens experiences wih implemening

and enorcing hese laws sugges ha he ederal governmen could carry ou a similarpolicy a he ederal level wih litle adminisraive cos or burden.52

The president has the authority to issue an execut ive order that

broadens existing nondiscrimination requirements

I is well wihin he presidens legal auhoriy o issue eiher an amended or a new execu-

ive order o require ha ederal conracors do no discriminae based on sexual oriena-

ion and gender ideniy. Furhermore, cours are generally relucan o overurn execuive

orders. Te Supreme Cour has only ever overurned wo execuive orders, neiher involv-ing nondiscriminaion requiremens. No only ha, bu lower cours have also repeaedly

upheld execuive orders prohibiing discriminaion by ederal conracors.

I a conracor were o challenge he proposed execuive order, cours would mos likely use

wo ess o deermine wheher he presiden had auhoriy o issue i: he economy and

eciency es and he confics es. An execuive order banning sexual-orienaion and

gender-ideniy discriminaion by ederal conracors would mos likely pass boh ess.

Firs, he Federal Propery and Adminisraive Services Ac o 1949 gives he presiden

broad auhoriy o prescribe policies and direcives relaing o he ederal governmens

role in he acquisiion o goods and services so long as here is a sucienly close ie

beween he execuive order and he economy and eciency o he procuremen

process. Generally, cours lenienly apply he economy and eciency es o execuive

orders, giving signican deerence o he presiden. Some cours, however, apply he

es more sricly and require a direc link beween he erms o an execuive order and

he goals o economy and eciency in governmen procuremen. As described earlier,



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inclusive nondiscriminaion and benes policies enhance he economy and eciency

o procuremen, and an execuive order requiring eiher should wihsand legal scruiny.

Second, cours would deermine wheher he execuive order explicily or implicily

confics wih any oher ederal laws. Currenly, no ederal law exiss ha would pose a

poenial confic wih a ederal-conracor execuive order, meaning ha such an order

would also pass he confics es.

Conclusion

Discriminaion orces qualied workers ou o jobs and has negaive economic eecs

on employers. When ederal conracors discriminae, hese coss and ineciencies are

passed along o he ederal governmen. Te naions workers, businesses, and axpayers

would bene grealy rom a policy ha prohibis conracors rom discriminaing based

on sexual orienaion and gender ideniy.

Te presiden can issue such a policy by amending Execuive Order 11246 o include

sexual orienaion and gender ideniy or by issuing a separae execuive order ha pro-

hibis discriminaion based on hese characerisics. Ulimaely, Congress migh pass he

Employmen Non-Discriminaion Ac, which would mean ha all LGB workers have

legal recourse should hey be discriminaed agains in any orm o employmen due o

heir sexual orienaion or gender ideniy.

In he meanime, however, execuive acion rom he presiden would give real, mean-

ingul, and immediae legal proecions o LGB workersproecions ha could mean

he dierence beween being employed and unemployed.

Crosby Burns is a Research Associae or he LGBT Research and Communicaions Projec

a he Cener or American Progress. Jef Krehely was he ormer Vice Presiden or he LGBT

Research and Communicaions Projec a he Cener.

Brad Sears is he execuive direcor and Robera A. Conroy scholar a he Williams Insiue,

and assisan dean o he UCLA School o Law. M.V. Lee Badget is he research direcor a

he Williams Insiue and he direcor o he Cener or Public Policy and Adminisraion

and proessor o economics a he Universiy o Massachusets Amhers. Nan D. Huner is he

legal scholarship direcor a he Williams Insiue and associae dean and proessor o law a

Georgeown Law Cener. Chrisy Mallory is he Reid Rasmussen ellow o law and policy a

he Williams Insiue.



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1 In April 2012 the Equal Employment Opportunity Com-mission issued a watershed ruling giving transgenderindividuals sorely needed protections against workplacediscrimination. According to the ruling, employers whodiscriminate against employees or job applicants on thebasis o gender identity can now be ound in violationo Title VII o the Civil Rights Act o 1964specically in

violation o its prohibition against sex discrimination inemployment. This ruling also has signicant implications orederal contractors, as current ederal regulations prohibitthose contractors rom disc riminating on the basis o sex,which under this relatively new ruling would include work-ers discriminated against based on their gender i dentity.These workers would have stronger protections i they werecodied into ederal l aw, however. The Employment Non-discrimination Act would make it clearer that discriminatingagainst employees based on their sexual orientation andgender identity is illegal under ederal law. Mac y v. Holder,May 2012.

2 Seth Althauser and Sarah Greenberg, FAQ: The EmploymentNon-Discrimination Act, Center or American Progress, July19, 2011, available at http://www.americanprogress.org/issues/lgbt/news/2011/07/19/9988/aq-the-employment-non-discrimination-act/.

3 Christie Malloy and Brad Sears, Documented Evidence o

Employment Discrimination and Its Eects on LGBT People(Los Angeles: The Williams Institute, 2011), available athttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pd.

4 Jaime Grant, Lisa Mottet, and Justin Tanis, Injustice at EveryTurn: A Report on the National Transgender DiscriminationSurvey (Washington: National Gay and Lesbian Task Force,2011), available at http://www.thetaskorce.org/downloads/reports/reports/ntds_ull.pd.

5 Aisha Moodie-Mills, Jumping Beyond the Broom: Why BlackGay and Transgender Americans Need More Than MarriageEquality (Washington: Center or American Progress, 2012),available at http://www.americanprogress.org/wp-content/uploads/issues/2012/01/pd/black_lgbt.pd.

6 H.R. 3017, Employment Non-Discrimination Act o 2009:Vandy Beth Glenn, YouTube, uploaded by EdLaborDemo-crats, September 23, 2009, available at http://www.youtube.com/watch?v=YuU5d4-s8BM.

7 Employment Non Discrimination Act Hearing: BrookeWaits, YouTube, uploaded by EdLaborDemocrats, Sep-tember 25, 2007, available at http://www.youtube.com/watch?v=Wq_4sGw1HLg.

8 Employment Non Discrimination Act Hearing: Michael Car-ney, YouTube, uploaded by EdLaborDemocrats, September25, 2007, available at http://www.youtube.com/watch?v=JlvNHPKKY_U&eature=relmu; Crosby Burns and Je Krehely,Gay and Transgender People Face High Rates o WorkplaceDiscrimination and Harassment (Washington: Center orAmerican Progress, 2011), available at http://www.ameri-canprogress.org/wp-content/uploads/issues/2011/06/pd/workplace_discrimination.pd.

9 Movement Advancement Project, Family Equality Council,and Center or American Progress, All Children Matter: HowLegal and Social Inequalities Hurt LGBT Families (2011),available at http://action.amilyequality.org/site/DocServer/

AllChildrenMatterFullFinal10212011.pd?docID=2401.

10 Ibid.

11 Randy Albelda and others, Poverty in the Lesbian, Gay,and Bisexual Community (Los Angeles: Williams Institute,2009), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Albelda-Badgett-Schneebaum-Gates-LGB-Poverty-Report-March-2009.pd.

12 National Center or Transgender Equality and National Gayand Lesbian Task Force, National Transgender Discrimina-tion Survey (2009), available at http://transequality.org/Resources/NCTE_prelim_survey_econ.pd.

13 Grant, Mottet, and Tanis, Injustice at Every Turn.

14 Sears and Mallory, Documented Evidence o EmploymentDiscrimination and Its Eect on LGBT People.

15 Crosby Burns, The Costly Business o Discrimination:The Economic Costs o Discrimination and the EconomicBenets o Gay and Transgender Equality in the Workplace(Washington: Center or American Progress, 2012), availableat http://www.americanprogress.org/wp-content/uploads/issues/2012/03/pd/lgbt_biz_discrimination.pd.

16 Jerome Hunt, A State-by-State o Nondiscrimination Lawsand Policies (Washington: Center or American Progress Ac-tion Fund, 2012), available at http://www.americanprogress.org/wp-content/uploads/issues/2012/06/pd/state_nondis-crimination.pd.

17 Althauser and Greenberg, FAQ: The Employment Non-Discrimination Act; Crosby Burns, Kate Childs Graham, andSam Meneee-Libey, Gay and Transgender Discriminationin the Public Sector: Why Its a Problem or State and Local

Governments, Employees, and Taxpayers (Washington:AFSCME and Center or American Progress, 2012), availableat http://www.americanprogress.org/wp-content/up-loads/2012/08/LGBTPublicSectorReport1.pd.

18 Christy Mallory and Brad Sears, An Evaluation o LocalLaws Requiring Government Contractors to Adopt Non-Discrimination and Afrmative Action Policies to ProtectLGBT Employees (Los Angeles: The Williams Institute,2012), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Govt-Contractors-Non-Discrim-Feb-2012.pd.

19 Movement Advancement Project, The Momentum Report 2009 Edition (2009), available at http://www.lgbtmap.org/le/momentum-report-2009.pd.

20 Crosby Burns and Liz Neemann, Inographic: Gay andTransgender Workers Lack Comprehensive WorkplaceBenets, Center or American Progress, October 18, 2012,available at http://www.americanprogress.org/issues/lgbt/

news/2012/10/18/41907/inographic-gay-and-transgender-workers-lack-comprehensive-workplace-protections/.

21 Ofce o Federal Contract Compliance Programs. History oExecutive Order 11246 (U.S. Department o Labor), availableat http://www.dol.gov/occp/about/History_EO11246.htm(last accessed February 2013).

22 Ofce o Federal Contract Compliance Programs, The Execu-tive Order 11246 (U.S. Department o Labor), available athttp://www.dol.gov/compliance/laws/comp-eeo.htm (lastaccessed February 2013).

23 Ofce o Federal Contract Compliance Programs, Facts onExecutive Order 11246 Afrmative Action (U.S. Depart-ment o Labor), available at http://www.dol.gov/occp/regs/compliance/aa.htm (last accessed February 2013).

24 Ofce o Federal Contract Compliance Programs, History oExecutive Order 11246.

25 Je Krehely and Crosby Burns, A One-Two Punch or WorkerProtection, Center or American Progress, April 4, 2012,available at http://www.americanprogress.org/issues/lgbt/news/2012/04/04/11393/a-one-two-punch-or-worker-protection/.

26 Ibid.

27 Ibid.

Endnotes
http://www.americanprogress.org/issues/lgbt/news/2011/07/19/9988/faq-the-employment-non-discrimination-act/http://www.americanprogress.org/issues/lgbt/news/2011/07/19/9988/faq-the-employment-non-discrimination-act/http://www.americanprogress.org/issues/lgbt/news/2011/07/19/9988/faq-the-employment-non-discrimination-act/http://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdfhttp://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdfhttp://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2012/01/pdf/black_lgbt.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2012/01/pdf/black_lgbt.pdfhttp://www.youtube.com/watch?v=JlvNHPKKY_U&feature=relmfuhttp://www.youtube.com/watch?v=JlvNHPKKY_U&feature=relmfuhttp://www.americanprogress.org/wp-content/uploads/issues/2011/06/pdf/workplace_discrimination.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2011/06/pdf/workplace_discrimination.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2011/06/pdf/workplace_discrimination.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Albelda-Badgett-Schneebaum-Gates-LGB-Poverty-Report-March-2009.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Albelda-Badgett-Schneebaum-Gates-LGB-Poverty-Report-March-2009.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Albelda-Badgett-Schneebaum-Gates-LGB-Poverty-Report-March-2009.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/lgbt_biz_discrimination.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/lgbt_biz_discrimination.pdfhttp://www.americanprogress.org/wp-content/uploads/2012/08/LGBTPublicSectorReport1.pdfhttp://www.americanprogress.org/wp-content/uploads/2012/08/LGBTPublicSectorReport1.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Govt-Contractors-Non-Discrim-Feb-2012.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Govt-Contractors-Non-Discrim-Feb-2012.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Govt-Contractors-Non-Discrim-Feb-2012.pdfhttp://www.lgbtmap.org/file/momentum-report-2009.pdfhttp://www.lgbtmap.org/file/momentum-report-2009.pdfhttp://www.americanprogress.org/issues/lgbt/news/2012/10/18/41907/infographic-gay-and-transgender-workers-lack-comprehensive-workplace-protections/http://www.americanprogress.org/issues/lgbt/news/2012/10/18/41907/infographic-gay-and-transgender-workers-lack-comprehensive-workplace-protections/http://www.americanprogress.org/issues/lgbt/news/2012/10/18/41907/infographic-gay-and-transgender-workers-lack-comprehensive-workplace-protections/http://www.dol.gov/ofccp/about/History_EO11246.htmhttp://www.dol.gov/compliance/laws/comp-eeo.htmhttp://www.dol.gov/ofccp/regs/compliance/aa.htmhttp://www.dol.gov/ofccp/regs/compliance/aa.htmhttp://www.americanprogress.org/issues/lgbt/news/2012/04/04/11393/a-one-two-punch-for-worker-protection/http://www.americanprogress.org/issues/lgbt/news/2012/04/04/11393/a-one-two-punch-for-worker-protection/http://www.americanprogress.org/issues/lgbt/news/2012/04/04/11393/a-one-two-punch-for-worker-protection/http://www.americanprogress.org/issues/lgbt/news/2012/04/04/11393/a-one-two-punch-for-worker-protection/http://www.americanprogress.org/issues/lgbt/news/2012/04/04/11393/a-one-two-punch-for-worker-protection/http://www.americanprogress.org/issues/lgbt/news/2012/04/04/11393/a-one-two-punch-for-worker-protection/http://www.dol.gov/ofccp/regs/compliance/aa.htmhttp://www.dol.gov/ofccp/regs/compliance/aa.htmhttp://www.dol.gov/compliance/laws/comp-eeo.htmhttp://www.dol.gov/ofccp/about/History_EO11246.htmhttp://www.americanprogress.org/issues/lgbt/news/2012/10/18/41907/infographic-gay-and-transgender-workers-lack-comprehensive-workplace-protections/http://www.americanprogress.org/issues/lgbt/news/2012/10/18/41907/infographic-gay-and-transgender-workers-lack-comprehensive-workplace-protections/http://www.americanprogress.org/issues/lgbt/news/2012/10/18/41907/infographic-gay-and-transgender-workers-lack-comprehensive-workplace-protections/http://www.lgbtmap.org/file/momentum-report-2009.pdfhttp://www.lgbtmap.org/file/momentum-report-2009.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Govt-Contractors-Non-Discrim-Feb-2012.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Govt-Contractors-Non-Discrim-Feb-2012.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Govt-Contractors-Non-Discrim-Feb-2012.pdfhttp://www.americanprogress.org/wp-content/uploads/2012/08/LGBTPublicSectorReport1.pdfhttp://www.americanprogress.org/wp-content/uploads/2012/08/LGBTPublicSectorReport1.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/lgbt_biz_discrimination.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/lgbt_biz_discrimination.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Albelda-Badgett-Schneebaum-Gates-LGB-Poverty-Report-March-2009.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Albelda-Badgett-Schneebaum-Gates-LGB-Poverty-Report-March-2009.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Albelda-Badgett-Schneebaum-Gates-LGB-Poverty-Report-March-2009.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2011/06/pdf/workplace_discrimination.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2011/06/pdf/workplace_discrimination.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2011/06/pdf/workplace_discrimination.pdfhttp://www.youtube.com/watch?v=JlvNHPKKY_U&feature=relmfuhttp://www.youtube.com/watch?v=JlvNHPKKY_U&feature=relmfuhttp://www.americanprogress.org/wp-content/uploads/issues/2012/01/pdf/black_lgbt.pdfhttp://www.americanprogress.org/wp-content/uploads/issues/2012/01/pdf/black_lgbt.pdfhttp://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdfhttp://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdfhttp://www.americanprogress.org/issues/lgbt/news/2011/07/19/9988/faq-the-employment-non-discrimination-act/http://www.americanprogress.org/issues/lgbt/news/2011/07/19/9988/faq-the-employment-non-discrimination-act/http://www.americanprogress.org/issues/lgbt/news/2011/07/19/9988/faq-the-employment-non-discrimination-act/


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28 Ibid.

29 M.V. Lee Badgett, The Impact o Extending Sexual Orienta-tion and Gender Identity Non-Discrimination Requirementsto Federal Contractors (Los Angeles: The Williams Institute,2012), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Badgett-EOImpact-Feb-201211.pd.

30 Ibid.

31 Ibid.

32 USASpending.gov, Prime Award Spending Data by

Agency, available at http://www.usaspending.gov/index.php?q=node%2F3&scal_year=2012&tab=By+Agency (lastaccessed February 2013).

33 Human Rights Campaign Foundation, Corporate EqualityIndex 2013 (2013), available at http://www.hrc.org/les/assets/resources/CorporateEqualityIndex_2013.pd.

34 Ibid.

35 M.V. Lee Badgett, The Impact o Extending Sexual Orienta-tion and Gender Identity Non-Discrimination Requirementsto Federal Contractors.

36 Brad Sears and Christie Mallory, Economic Motives orAdopting LGBT-Related Workplace Policies (Los Angeles:The Williams Institute, 2011), available at http://williamsin-stitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp-Statements-Oct2011.pd.

37 Ibid.

38 Crosby Burns and Je Krehely, Ensuring Workplace Fairnessis Not Expensive, Center or American Progress, October 12,2011, available at http://www.americanprogress.org/issues/lgbt/news/2011/10/12/10465/ensuring-workplace-airness-is-not-expensive/.

39 Ibid.

40 Ibid.

41 Ibid.

42 Ibid.

43 Ibid.

44 Je Krehely, Polls Show Huge Public Support or Gayand Transgender Workplace Protections, Center orAmerican Progress, June 2, 2011, available at http://www.americanprogress.org/issues/lgbt/news/2011/06/02/9716/polls-show-huge-public-support-or-gay-and-transgender-

workplace-protections/.

45 Human Rights Campaign, Americans OverwhelminglySupport Executive Action to Ban Anti-LGBT WorkplaceDiscrimination, available at http://www.hrc.org/resources/entry/americans-overwhelmingly-support-executive-action-to-ban-anti-lgbt-workplac (last accessed February2013).

46 Movement Advancement Project, The Momentum Report 2009 Edition.

47 Je Krehely, Polls Show Huge Public Support or Gay andTransgender Workplace Protections.

48 Ibid.

49 Crosby Burns, Small Businesses Support Fairness,Center or American Progress, October 5, 2011, avail-able at http://www.americanprogress.org/issues/lgbt/

news/2011/10/05/10432/small-businesses-support-air-ness/.

50 Mallory and Sears, An Evaluation o Local Laws RequiringGovernment Contractors to Adopt Non-Discrimination andAfrmative Action Policies to Protect LGBT Employees.

51 Ibid.

52 Ibid.
http://www.usaspending.gov/index.php?q=node%2F3&fiscal_year=2012&tab=By+Agencyhttp://www.usaspending.gov/index.php?q=node%2F3&fiscal_year=2012&tab=By+Agencyhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp-Statements-Oct2011.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp-Statements-Oct2011.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp-Statements-Oct2011.pdfhttp://www.hrc.org/resources/entry/americans-overwhelmingly-support-executive-action-to-ban-anti-lgbt-workplachttp://www.hrc.org/resources/entry/americans-overwhelmingly-support-executive-action-to-ban-anti-lgbt-workplachttp://www.hrc.org/resources/entry/americans-overwhelmingly-support-executive-action-to-ban-anti-lgbt-workplachttp://www.hrc.org/resources/entry/americans-overwhelmingly-support-executive-action-to-ban-anti-lgbt-workplachttp://www.hrc.org/resources/entry/americans-overwhelmingly-support-executive-action-to-ban-anti-lgbt-workplachttp://www.hrc.org/resources/entry/americans-overwhelmingly-support-executive-action-to-ban-anti-lgbt-workplachttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp-Statements-Oct2011.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp-Statements-Oct2011.pdfhttp://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp-Statements-Oct2011.pdfhttp://www.usaspending.gov/index.php?q=node%2F3&fiscal_year=2012&tab=By+Agencyhttp://www.usaspending.gov/index.php?q=node%2F3&fiscal_year=2012&tab=By+Agency

An Executive Order to Prevent Discrimination Against LGBT Workers

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