On July 21, President Obama signed an executive order aimed at protecting LGBT (lesbian, gay, bisexual and transgender) individuals from discrimination in the workplace. The order applies to federal employers and contractors, but employers that receive federal funding are taking a close look at the order to determine if it applies to them.
This order, explains Denise M. Visconti, office managing shareholder at Littler Mendelson P.C., solidifies trends that have been evident in the courts. “Case law is moving in the direction of greater protection under Title VII,” she says, “extending federal law to cover discrimination of LGBT.”
She notes that there have been different interpretations of the law, covering, for example, gender stereotyping. If a man is not acting like a “typical male” should act, or a woman is acting in a more “traditionally masculine” fashion, courts in most circuits are extending Title VII to cover matters of discrimination related to that form of stereotyping.
The executive order, says Visconti, is crystal clear. “Federal employers and contractors are prohibited from harassing employees that are part of the LGBT community, and discrimination based on gender identity or expression is explicitly prohibited,” she explains.
Of course, in many cases, companies have already started implementing policies and procedures designed to protect members of the LGBT community. This order, says Visconti, could spur companies to take a step back and see what they have been doing and what they should be doing. “Employers have said that they will follow state law and also extend protection to groups beyond what state law requires. Employers would be advised to take a look at their policies about equal employment opportunities or non-discrimination,” she says. Employers should take a look at these codes of conduct and see if they include sexual identity, gender orientation and expression.
The movement toward diversity is, of course, driven at least in part by business priorities. “Employers understand and believe that a diverse workforce – whatever that means – is beneficial and cost-effective,” Visconti says.
Limiting a candidate pool by mistreating individuals is bad for business, and diversity allows for a richer and deeper discussion, so there is a business case for diversity in all forms. This executive order, then, merely reinforces a trend in business, as companies look to diversify and update their policies and expectations to widen the scope of that diversity. In order to enact these policies, companies must implement proper training in order to address the widening scope of diversity.
Looking into her crystal ball, Visconti notes that it remains to be seen if there is potential backlash against this executive order. Prior to the issuance of the order, there was a series of requests of the President to add a religious exemption to the order, though it was unclear what that exemption would look like. And, whether or not companies will challenge the order, along the lines of the arguments brought by Burwell v. HobbyLobby, it is unclear how courts would rule about these federal requirements in regard to religious exemptions.