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Hunter and Sears: Take Steps to Promote Workplace Equality

Americans overwhelmingly agree that gay and transgender people deserve to be treated equally in the workplace. This agreement includes employers: A recent Williams Institute study shows that 86 percent of all federal contractors have internal policies that prohibit sexual orientation discrimination, and the same is true of gender identity discrimination for more than half of all contractors.

Unfortunately, a federal anti-discrimination law that would make these protections enforceable remains stalled for the foreseeable future.

In this environment, a storm has erupted over President Barack Obama’s decision not to issue an executive order “at this time” that would ban discrimination based on sexual orientation and gender identity by federal contractors. Of those who defend the president’s decision as political pragmatism, some have overreacted to the criticism, mistakenly attacking the value of executive orders in their efforts to defend the administration.

Executive orders prohibit discrimination by businesses that provide goods or services to the government, and they have been important throughout the history of civil rights law. Acting on the principle that federal tax dollars should not fund private discrimination, President Franklin Roosevelt used an executive order to prohibit race discrimination in the defense industry long before the Civil Rights Act of 1964 extended such protections to the entire private sector.

These contracting rules continue to be important even after the enactment of legislation.

The Labor Department is charged with monitoring companies that receive federal funds in a system that does not include the kind of private lawsuits that may be filed under civil rights laws. For that reason, the protections of executive orders addressing race and sex discrimination, for example, have continued regardless of whether legislation has been enacted. To argue, as some have, that one must or should choose between the protections established by executive orders and those established by civil rights laws is simply an effort to create a false dichotomy. Ask any civil rights lawyer.

The president’s authority to issue requirements for federal contractors stems from his position as essentially the CEO of the federal government. In that capacity, he can take steps to enhance the economy and efficiency of government operations, including by setting rules that prohibit contractors from relying on prejudice rather than merit in choosing the individuals who work on government projects. When anti-discrimination provisions have been challenged, federal courts have upheld them as part of executive branch authority.

The widespread support for executive orders as part of the anti-discrimination toolkit is evident in their permanence. Each president not only has the power to issue such an order; he also has the power to revoke a previous one. Yet despite the long line of Democratic and Republican administrations since the first Roosevelt order, no president has ever rescinded an anti-discrimination order. For example, President Bill Clinton issued an executive order barring sexual orientation discrimination in the federal workforce in 1998, and President George W. Bush left it in place.

Given the overall commitment of the Obama administration to civil rights enforcement, it is unfortunate some of its spokespeople have argued that this proposed executive order would be unnecessary or unwise. They know better. The sooner the administration takes the step that it should, and probably eventually will, the better the public understanding will be of how we should fight discrimination: as fully and effectively as possible.

Nan D. Hunter is legal scholarship director at the Williams Institute, a think tank associated with the UCLA School of Law, and associate dean for graduate programs and professor of law at Georgetown University Law Center. Brad Sears is executive director of the Williams Institute.

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