23 years before the Civil Rights Act, Franklin Roosevelt issued an executive order that banned the federal government, including the armed forces, from discriminating on the basis of race, color, creed, or national origin. Now advocates are hoping president Obama will do something similarly radical for the lesbian, gay, bisexual and transgender community, and make it illegal, by executive order, for any company contracted by the federal government to discriminate on the basis of sexual orientation or gender identity.
Most Americans don't think such an order is necessary. Because nine in 10 Americans already think it's illegal to discriminate against LGBT Americans in the workplace, according to a June 2011 poll by the Center for American Progress. But those employees actually lack federal protections. In most parts of this country, employers can legally fire someone, deny them a promotion, or refuse to hire them for being gay.
LGBT advocates have been trying to change this for a long time. The Employment Non-Discrimination Act has been introduced to Congress almost every year since 1994, at first proposing protections for just gays and lesbians, and later including transgender Americans too. With Congress currently gridlocked, there's little chance of it becoming law in the current legislative season.
As Barney Frank (D-Mass.), the longtime lead sponsor of ENDA, put it in a press conference last November: "The only way you can get any law passed that fights discrimination based on sexual orientation and/or gender identity is if you have a Democratic president, House and Senate."
So lobbyists opted to skirt the House and Senate entirely, and went straight to the Democratic president. "The ultimate answer to the problem of discrimination against LGBT employees is for congress to pass the ENDA," Ian Thompson, a legislative representative for the American Civil Liberties Union, told AOL Jobs. "But we realize that the current time we're in right now, that's not going to make it all the way to the president's desk."
In mid-January, leading LGBT advocates sent Frank a 12-page proposal that explained why an executive order was the logical step forward. Soon after, they met with Frank's senior policy advisor, Diego Sanchez, to discuss the details, reports the gay news magazine Metro Weekly.
"The order is now at the White House," said Thompson. "If the president chooses to, he could sign this in theory tomorrow."
If the order became law, 11 million employees would suddenly be protected against sexual orientation discrimination, and an additional 16 million employees would be protected against discrimination on the basis of gender identity, according to a recent study from the Williams Institute, an LGBT research institution that is one of the main lobbyists for the order. This includes an estimated 400,000 to 600,000 lesbian, gay, bisexual and transgender Americans.
"For the first time in American history," said Thompson, "more than half of American workers would have legally binding workplace rights based on sexual orientation and gender identity."
But Thompson doesn't think the move would be particularly controversial. Not only do most Americans already believe these protections are in place, but 61 percent of federal contractors already ban discrimination against gays and lesbians, according to the Williams Institute report, compared to 51 percent of other companies. Thirty-eight percent of federal contractors ban discrimination on the basis of gender identity, in comparison to a quarter of other companies.
It's also good for business, Thompson points out. Anti-discrimination policies help companies attract and retain a wider range of talent, which may be why almost all Fortune 500 companies have protections in place for gays and lesbians.
Advocates are hopeful, but are well aware it's only the first step. "It's the opportunity to create a tipping-point moment for sexual orientation and gender identity," said Thompson.
It won't solve the fact that it's still legal to fire someone for being gay in 29 states -- that over a quarter of lesbians, gays and bisexuals have been harassed at work or lost their jobs because of their sexual orientation, according to one Williams Institute report -- and that gay men suffer a wage penalty of 11 to 30 percent, by various estimates.
Only the passage of ENDA can do that. Advocates just hope that LGBT workplace protections won't follow the same timeline as racial protections -- and not pass until more than two decades after an executive order.
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