President Obama issued an Executive Order on July 21 amending Executive Order 11246 for Equal Employment Opportunity, making “our government…just a little bit fairer”. Executive Order 11246, signed by President Johnson in 1965, prohibits government contractors doing $10,000 worth of government business on an annual basis from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. In addition, the Executive Order requires those contractors to take affirmative action ensuring equal employment is afforded in all aspects of employment (this is why you have an Affirmative Action Program (AAP)).
The amended Executive Order adds sexual orientation and gender identity to the list of protected classes. The Executive Order substitutes “sex, or national origin” with “sex, sexual orientation, gender identity, or national origin”. Many state and local governments have taken action to prohibit discrimination against sexual orientation and gender identity but this is the first step the federal government has taken to treat LGBT workers fairly. This is not federal law that applies to all workers in the US yet, but it is one step closer.
The Department of Labor is responsible for enforcing Executive Order 11246, and the Secretary of Labor has 90 days from the date of the Order to prepare regulations to implement these changes. As of the date of this writing, those regulations have not been prepared yet so there is nothing to do yet. However, there are a few things you can do to be proactive and get ahead of the game:
- If you are in the midst of reviewing your policies and/or handbook, which you should do at least annually anyway, I recommend updating your documents with the new language so you do not have to do another revision when the regulations are published.
- Title 41 CFR 60-300, which regulate the requirements of an AAP, already requires contractors to state in job advertisements and solicitations that “all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin”. The amendments that went into effect March 24 of this year required adding “veterans and disability” to that list as well. I recommend now also including “sexual orientation” and “gender identity” to your job postings too.
- At your next managers meeting, you can inform all managers of the new Executive Order and the consequences of discriminating when making hiring and firing decisions.
I do not imagine the new regulations will require contractors to report on this information and I would not recommend you start asking candidates and employees to start self-identifying their sexual orientation. Do keep an eye out for the DOL to publish those regulations and prepare to make adjustments to your practices. Taking these few steps now will help you prepare.