White House Signals No Change In LGBTQ Order For Federal Contractors

The New York Times reported  President Trump will preserve intact President Obama’s LGBT order (Executive Order 13672) protecting applicants and employees from discrimination on the basis of sexual orientation and gender identity.

As published by the Times, a White House statement provides:

President Trump continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election… The president is proud to have been the first ever G.O.P. nominee to mention the L.G.B.T.Q. community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.

The LGBT Order amended Executive Order 11246, signed by President Johnson in 1965, but beyond its centerpiece anti-discrimination provisions, does not require affirmative action from federal contractors. For example, the LGBT Order and regulations impose no outreach, data collection or analysis obligations. Federal contractors must only include “sexual orientation” and “gender identity” in extended EEO taglines, but may continue to use an abbreviated tagline without such references. Contractors must also post an OFCCP-supplement to the “EEO is the Law” poster, until the poster is updated.

By the time the Order was signed in July 2014, many contractors had already implemented EEO policies protecting gender identity and sexual orientation and many contractors have since enshrined these protections in their EEO Policy Statements and handbooks, going beyond the requirements of the LGBT Order.

President Trump’s decision on this Order is not, however, likely to be the last word on the topic. During the campaign, the candidate stated he would support the controversial First Amendment Defense Act (FADA). Two members of Congress have said they intend to reintroduce the bill this year.

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If passed and signed by the President, FADA would essentially prevent the federal government from taking adverse action against people, businesses or institutions which discriminate based on sexual orientation according to a belief that “marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”

We will provide an update if and when FADA is reintroduced in Congress.

This article was originally posted on The Affirmative Action Law Advisor blog.

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell assists clients with the drafting of affirmative action plans, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations.

She is also on the leadership team for the firm’s Government Contractor Industry Group and a member of the firm’s Pay Equity Resource Group.

Ms. Mitchell is an auditor and principle contributor of The Affirmative Action Law Advisor blog and frequently presents on affirmative action compliance, OFCCP enforcement trends, strategic applicant tracking and government contractor obligations to local ILGS and other organizations.


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