White House Defends EO Decision, Saying "Time Is Right" for ENDA -- and Prompting More Criticism

Posted by Chris Geidner
April 16, 2012 6:05 PM |

Facing continued fallout from the Obama administration's decision not to proceed with an executive order banning LGBT discrimination by federal contractors, White House spokesman Shin Inouye tells Metro Weekly today that "the time is right for a comprehensive legislative approach" to address anti-LGBT workplace discrimination -- a reference to the Employment Non-Discrimination Act -- although he added that "the Administration hasn't taken any options off the table."

In responding to questions about the decision on Thursday, April 12, White House press secretary Jay Carney had pointed to "an inclusive Employment Non-Discrimination Act" as providing "lasting and comprehensive non-discrimination protections" for LGBT people. He had, contrary to today's statement, said, "[W]e do not expect that an EO on LGBT nondiscrimination for federal contractors will be issued at this time."

obama-lgbtpride2011.jpgAdvocates from the Human Rights Campaign, Center for American Progress and Freedom to Work, though, all found today's response lacking -- at least as to its focus on ENDA to the detriment of the executive order path.

HRC vice president for communications Fred Sainz tells Metro Weekly that today's statement ignores the "political realities in 2012" -- from the Republican control of the House to the difficulty of reaching 60-vote support in the Senate -- that prevent ENDA from being "a viable option," and Freedom to Work president Tico Almeida says that, even on the legislative front, the administration needs to put action behind today's comments in order to prove its sincerity on the issue.

CAP vice president for LGBT research and communications Jeff Krehely, summed up the frustration, telling Metro Weekly, "The president has clear legal authority to issue this executive order, and CAP calls on him to do that now."

Inouye made today's statement in response to a request from Metro Weekly made on Friday, April 13, asking whether the president continues to support a formal written policy of nondiscrimination that includes sexual orientation and gender identity or expression for all Federal contractors, as he'd committed to in a 2008 political questionnaire. 

Inouye responded to Metro Weekly today, writing, "President Obama is deeply committed to working to address the issue of LGBT employment discrimination. An inclusive ENDA would provide broad, lasting and comprehensive protections for LGBT people across the country, regardless whether they happen to work for a government contractor. While the Administration hasn't taken any options off the table, our belief is that the time is right for a comprehensive legislative approach to achieve passage of ENDA."

He added, "We will work with a broad range of partners to continue to build the case for, and raise awareness of the need for, employment nondiscrimination protections that include the LGBT community."

In addition to the reporting from Metro Weekly on the 2008 questionnaire, MSNBC's Melissa Harris-Perry raised the issue on her show on Sunday, April 15, and the vice president of the National Council of La Raza today "strongly urge[d]" President Obama to "revisit [his] position on signing an executive order (EO) prohibiting the discrimination of federal contractors in the workplace on the basis of sexual orientation and gender identification."

La Raza, which bills itself as "the largest national Hispanic civil rights and advocacy organization in the United States," noted in the letter signed by La Raza vice president Eric Rodriguez, "25 of some of the largest federal contractors think it is a good practice to add sexual orientation and gender identity to their non-discrimination policies. It is, but it also does something else -- it protects a group of people who have a long history of being marginalized and gives them hope. That is why we urge you to sign an EO on this matter as soon as possible."

In response to today's comments from the White House, Freedom to Work's Almeida tells Metro Weekly that he has a two-point response.

"We're not giving up on the executive order," he starts. "We are strongly encouraging them to reconsider their mistake on punting the executive order to a later time because that punt has a real human cost that will hurt LGBT Americans who are fired or harassed at federal contractors between now and the day that the president eventually signs the executive order."

Point two, he says, is: "Get [Sen. Tom] Harkin [(D-Iowa), who chairs the Senate Health, Education, Labor and Pensions Committee] to do a hearing and mark-up, and get [Majority Leader Harry] Reid [(D-Nev.)] to take it to the floor. This is the test of their sincerity on a legislative strategy. If they can get that done, it shows that they're making a good-faith effort. If they can't get Tom Harkin to hold both a hearing and a mark-up, then it seems to me that they're not really trying."

In following up with Metro Weekly, Almeida added that "[a] hearing alone is not enough. They should follow it up with a mark-up, just as Sen. [Patrick] Leahy of Vermont [(D)] did with Respect for Marriage Act in the Senate Judiciary Committee."

Leahy took the RMA, which would repeal the Defense of Marriage Act, through the Judiciary Committee, which he chairs, and the bill passed out of committee on a party-line vote on Nov. 10, 2011. Reid has taken no action on the bill since.

CAP's Krehely noted, "I'm glad to hear the president has a strong commitment to ending workplace discrimination against LGBT people, and I'm also glad to hear that they haven't ruled out any options."

Moving forward, he says, "I think, though, in the short-term, we don't have much chance if any of a legislative solution to the problem of workplace discrimination. The president has clear legal authority to issue this executive order, and CAP calls on him to do that now."

HRC's Sainz echoes Krehely, writing, "We would welcome a legislative solution -- and in fact have been fighting for it since the bill was introduced in 1994 -- but the political realities in 2012 do not make that a viable option. In the meantime, the president has the opportunity to issue an executive order that would protect the greatest number of LGBT workers from discrimination. We will continue to push the administration to do both: to issue an executive order and advocate for the passage of ENDA."

Finally, Almeida took issue with Inouye's comment that ENDA would provide protections to all workers, federal contractor or not.

"Their statement does not acknowledge that there are different and additional protections in the executive order that would be needed even if we had already passed ENDA," Almeida says. "If LGBT Americans are going to have full equality in the workplace, then we must have both the statute and the executive order. By diminish the importance of the executive order, they are relegating LGBT Americans to a second class of workplace protection."

The executive order, by giving the Office of Federal Contract Compliance Programs (OFCCP) authority to ensure compliance with the order, would provide additional protections -- available under Executive Order 11246 to employees of federal contractors discriminated against on the basis of race, religion, sex or national origin -- to LGBT employees of federal contractors that would not be available under ENDA.

[Photo: Obama (Photo by Ward Morrison.)]


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