With President Obama’s Executive Order 13672 now in full effect, federal contractors and subcontractors are prohibited from discriminating on the basis of sexual orientation and gender identity. The order highlights the importance for all employers — especially those companies that receive the billions of taxpayer dollars spent each year to supply goods, provide services, and perform construction work for government agencies — to examine their policies and procedures related to hiring, firing, pay, promotion, and other employment practices.
Signed into law last summer and taking effect earlier this month, the order allows lesbian, gay, bisexual, and transgender individuals employed by federal contractors across the country to receive new legal protections designed to ensure they are “judged by the quality of their work, not who they are.”
Under the terms of the executive order, only contracts entered into or modified after April 8, 2015 are affected. In other words, existing contracts will only be affected if contractors and contracting agencies modify those contracts after the effective date of the final rule issued by the Office of Federal Contract Compliance Programs (OFCCP).
Notably, the executive order does not require employers to undertake new record keeping, data analysis, goal setting, or other similar affirmative action. Nor are employees and job applicants required to identify their sexual orientation or gender identity.
However, this change does not come without some noteworthy requirements and best practices for employers. Under both the executive order and the final rule, federal contracting agencies must include sexual orientation and gender identity as prohibited bases of discrimination under the Equal Opportunity Clause. Contractors may either state that they do not discriminate on any of the protected bases under Executive Order 11246 (the 1965 equal employment opportunity order now amended by Executive Order 13672), and list them all, or they may simply use the phrase “equal opportunity employer.” These same options remain under the final rule.
If electing the first option above, contractors subject to the final rule will be required to add “sexual orientation” and “gender identity” to the list of bases on which discrimination is prohibited. The use of the “LGBT” abbreviation is discouraged, because it is thought that it does not accurately reflect people of all sexual orientations and gender identities are protected by the final rule.
As a reminder, contractors will also be required to display an updated “EEO Is the Law” poster reflecting the new protected bases once that poster is finalized by the EEOC and OFCCP.
For more information on the impact of this executive order on your business, contact: