THE BLOG
12/12/2014 06:58 pm ET Updated Feb 02, 2016

The Department of Labor Secures the LGBT Federal Contractor Executive Order

Here is the notice [bold mine] that will be part of American economic life beginning in April:

EQUAL EMPLOYMENT OPPORTUNITY IS THE LAW--DISCRIMINATION IS PROHIBITED BY THE CIVIL RIGHTS ACT OF 1964 AND BY EXECUTIVE ORDER NO. 11246

Title VII of the Civil Rights Act of 1964--Administered by: THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Prohibits discrimination because of Race, Color, Religion, Sex, or National Origin by Employers with 15 or more employees, by Labor Organizations, by Employment Agencies, and by Apprenticeship or Training Programs

Any person Who believes he or she has been discriminated against Should contact ------------------------------------------------------------------------------------------------------------
--------- THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street NW., Washington, DC 20507

Executive Order No. 11246--Administered by: THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS

Prohibits discrimination because of Race, Color, Religion, Sex, Sexual Orientation, Gender Identity, or National Origin, and requires affirmative action to ensure equality of opportunity in all aspects of employment.

By all Federal Government Contractors and Subcontractors, and by Contractors Performing Work Under a Federally Assisted Construction Contract, regardless of the number of employees in either case.

Any person Who believes he or she has been discriminated against Should Contact ------------------------------------------------------------------------------------------------------------
--------- THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS U.S. Department of Labor, Washington, DC 20210

Thanks to the leadership of President Obama and the work of his committed staff, Secretary Perez and OFCCP Director Patricia Shiu at the Department of Labor, and the persistent lobbying over the past four years by Freedom to Work, GetEqual and our organizational allies, including the research powerhouses at the Williams Institute and Movement Advancement Project, the above will be the law of the land in April.

Similar language will appear in advertisements and solicitations for business, and posted in places of business. As this is an Executive Order, there is no requirement for public input, as demanded by some conservative extremists.

The purpose of this Rule is set forth in the Summary [bold mine]:

The Office of Federal Contract Compliance Programs (OFCCP) is revising the regulations implementing Executive Order (EO) 11246, as amended, in accordance with Executive Order (EO) 13672, "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity," which was signed by President Barack Obama on
July 21, 2014. EO 13672 amended EO 11246, which previously only prohibited discrimination by Federal contractors and subcontractors on the bases of race, color, religion, sex, and national origin and required them to take affirmative measures to prevent discrimination on those bases from occurring. More specifically, EO 13672 amended section 202 and section 203 of EO 11246, by substituting the phrase "sex, sexual orientation, gender identity, or national origin" for "sex or national origin." This final rule implements EO 13672 by making the same substitution wherever the phrase "sex or national origin" appears in the regulations implementing EO 11246.

Why is this necessary? As the Rule lays out on page 10:

Benefits of this rule include equity, fairness, and human dignity. Such benefits are difficult to quantify but nevertheless are important and specifically recognized by Executive Order 13563. In addition, employment discrimination on the basis of sexual orientation or gender identity, like employment discrimination on other bases prohibited by EO 11246, may have economic consequences. It, like other forms of discrimination, may lead to reduced productivity and lower profits. Contractor employees who face discrimination on the basis of sexual orientation or gender identity on the job may experience lower self-esteem, greater anxiety and conflict, and less job satisfaction. Such employees may also receive less pay and have less opportunity for advancement. Job applicants who experience discrimination on the basis of sexual orientation or gender identity may not be considered for a job at all, even though they may be well qualified. This rule is designed to address these problems to ensure a fair and inclusive work environment in the context of Federal contractors.

Here's the money paragraph on page 7, which highlights the commitment of the federal government to protecting trans persons in all fifty states even outside the federal contractor worksphere:

Lastly, although EO 13672 adds "gender identity" as an independent basis upon which discrimination is prohibited under EO 11246, nothing in EO 13672 or this final rule diminishes the pre-existing coverage of discrimination on the basis of gender identity or discrimination on the basis of transgender status as a form of sex discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012); OFCCP Directive 2014-02, "Gender Identity and Sex Discrimination," effective August 19, 2014 (available online).

This is not vague or unclear -- Title VII covers trans persons against discrimination. I hope the clarity of this insertion will finally convince our friends at the LGBTQ Task Force, Center for American Progress and any other holdouts (including trans persons obsessed with the now-expired ENDA) to reconsider their resistance to full, on-the-ground support for the trans community.

It is also important to note that the reality behind this paragraph came about because of the advocacy of those members of the community, both on the inside and from without, who persevered in prodding the administration to sign this Order and who promoted the Macy decision brought to fruition by Commissioner Feldblum and her fellow Commissioners, Chief Counsel David Lopez, and the team at the Transgender Law Center who handled the case for Mia Macy. The "small ball" that is rarely visible until the final product is the necessary hard work that makes these breakthroughs possible.

Finally, for those who might be concerned about bathrooms, the Rule very artfully lays out its expectations and alternatives should they ever be necessary on page 36:

§ 60-1.8 Segregated facilities.
To comply with its obligations under the Order, a contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensuring that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. This obligation extends to all contracts containing the equal opportunity clause regardless of the amount of the contract. The term "facilities," as used in this section, means waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees; Provided, that separate or single-user restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes.

Are there costs? As the Rule lays out:

The expected costs to employers resulting from this rule are: Regulatory familiarization, incorporation of the modified new language into the equal opportunity clauses they currently use in covered subcontracts and purchase orders, the reporting of any visa denials, and administrative costs associated with providing required notices to employees and modifying existing job posting templates. OFCCP expects that other changes made by this rule - such as the prohibition of segregation of facilities on the basis of sexual orientation or gender identity will have minimal costs to employers. This rule does not require contractors to set goals for employing persons on the basis of sexual orientation or gender identify, collect and maintain statistics on applicants or employees on the basis of sexual orientation or gender identity, or conduct statistical analysis of applicants or employees on the basis of sexual orientation or gender identity. Therefore, the costs of performing such activities are not included in this analysis.

There will be more detailed regulations written over the next few months -- "further guidance will be forthcoming 'as has been OFCCP's practice'" -- as detailed in the latest report from Chris Geidner.

Thank you again, Mr. President!