President Obama signed an executive order yesterday banning discrimination against LGBT employees by federal contractors. The new EO amends EO 11246 to add sexual orientation and gender identity to the list of categories of contractor employees protected from discrimination and the list of categories of employees in regard to which covered contractors must take affirmative action to ensure equal employment opportunity.
President Johnson issued the initial version of EO 11246 in September 1965. The order prohibits federal contractors and federally-assisted construction contractors and subcontractors, with more than $10,000 in government contracts annually, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. In addition to its nondiscrimination provisions, EO 11246 also requires covered contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.”
The new EO adds sexual orientation and gender identity to that list. The EO does not contain any exemption for religious organizations beyond that made by President Bush in 2002 with EO 13279, which allows religiously affiliated contractors to favor individuals of a particular religion when making employment decisions. Nevertheless, religious organizations that are government contractors subject to the requirements of EO 11246 are still required to comply with the other nondiscrimination and affirmative action rules set forth in EO 11246.
The Labor Department’s Office of Federal Contract Compliance Programs enforces EO 11246, and Section 3 of the new EO specifically requires the department to, within 90 days of the order, “prepare regulations to implement” its requirements. However, due to the notice and comment requirements of the federal regulatory process, it will likely take at least six months for OFCCP to finalize these regulations.