With the senior policy advisor for Rep. Barney Frank (D-Mass.) telling Metro Weekly on Feb. 4 that timing is key for President Obama to take action to prohibit federal contractors from discriminating against employees on the basis of sexual orientation or gender identity, questions about the specifics of the proposed executive order — on which the White House is not commenting — matter.
Beyond the questions of if and when Obama will sign such an executive order, a review of a Jan. 13 memo sent to Frank about the proposal — reported about exclusively by Metro Weekly on Feb. 4 — shows three additional important questions that leading advocates are asking: whether such an executive order could be challenged in court; whether domestic partner benefits should be required by such an executive order; and how affirmative action, required in other areas of an existing federal contractor executive order, should be addressed.
The position on all three of these questions taken in the Jan. 13 memo, sent to Frank from the Center for American Progress and Williams Institute, is particularly relevant because LGBT advocates involved in discussions about the proposal point to the Williams Institute and CAP as the “lead” organizations on the issue. Frank’s senior policy advisor, Diego Sanchez, also pointed to Freedom to Work’s Tico Almeida as a leading force on the issue. Others involved in various efforts to advance the issue, according to advocates, include the Human Rights Campaign, National Center for Transgender Equality, ACLU and Lambda Legal.
In a new report released today from the Williams Institute, University of Massachusetts-Amherst economics professor Lee Badgett, who serves as the research director of the Williams Institute, looks at the impact of the proposed executive order. The report concludes that, should such a prohibition be implemented, “11 million additional employees would gain protection against sexual orientation discrimination and 16 million employees would be protected against gender identity discrimination.”
PRESIDENTIAL AUTHORITY: Faced with the question of whether the president authorized to provide such protections, the Jan. 13 memo concludes yes — with a caveat.
“It is well within the president’s legal authority to issue either an amended or a new executive order to require that federal contractors not discriminate based on sexual orientation and gender identity. Further, courts are generally reluctant to overturn executive orders,” the memo states. It goes on, however, to note that there is not any Supreme Court case establishing unequivocally the constitutionality of such nondiscrimination orders — meaning that a contractor wishing to challenge it could do so.
Such a contractor could argue either that the executive order does not advance government procurement “economy and efficiency” or that it conflicts with an existing law like the Defense of Marriage Act. The memo calls the latter challenge “not particularly strong” and argues that an executive order “should withstand legal scrutiny” if challenged as to the former.
Beyond the question of the underlying authority to issue the executive order, two specific questions about the scope of the order are raised in the CAP-Williams memo: domestic partnership benefits and affirmative action.
PARTNER BENEFITS: As to domestic partnership benefits, Badgett’s new report, “The Impact of Extending Sexual Orientation and Gender Identity Non-Discrimination Requirements to Federal Contractors,” looks into the impact of including a requirement in such an executive order that federal contractors offer domestic partner benefits to employees — an area addressed in a memo sent to Frank from the Center for American Progress and Williams Institute in mid-January.
According to the report, “We also estimate that requiring federal contractors to offer domestic partner benefits to same-sex partners of employees would expand such coverage to companies that employ 14-15 million people.” The report notes, though, it found that “only 40,000 to 136,000 of these employees would sign up a same-sex partner for coverage, and they would be spread out across tens of thousands of federal contractors.”
In the Jan. 13 memo from CAP and Williams, the specific considerations of such a domestic partnership requirement are discussed. “An executive order could also require contractors to provide equal health and other benefits to same-sex partners when those benefits are offered to different-sex spouses. Such an order could require parity in benefits for both employees with a same-sex domestic partner and those with a different-sex domestic partner, or just those with a same-sex partner,” the memo advised Frank.
If opposite-sex and same-sex partners are covered, the memo states that it “would broaden the scope of the executive order” beyond what has previously been discussed and “also could raise costs, although such costs could have corresponding positive economic effects.” The memo notes that this “is particularly important because in order to survive a legal challenge, the proposed executive order must further the federal government’s interest in ‘economy and efficiency.'”
The memo goes on to detail the potentially awkward situation that could be raised even if the order only included required coverage for same-sex domestic partners: “the federal government currently does not offer health insurance coverage for its employees’ same-sex partners, although it does treat lesbian and gay employees equally with respect to a broad range of other benefits.”
To that end, the memo notes, “Requiring private businesses to offer health insurance to employees and their same-sex partners when the federal government does not do so may prompt some resistance from the private sector. However, such a response would be in contrast with the positive assessments given by the employers that already have equalized their health insurance plans, and the government entities with such policies already in place.”
AFFIRMATIVE ACTION: Finally, there is the question of affirmative action, the mere mention of which is likely to raise red flags to some. The memo addresses two areas: what it calls “‘soft’ affirmative action” programs aimed at recruiting a diverse workforce, as well as “numerical placement goals” described by opponents as “quotas.”
According to the CAP-Williams Institute memo, “An executive order could require contractors to implement policies to recruit and retain qualified LGBT employees and to educate all employees to help prevent workplace harassment and discrimination.”
Examining the current executive order covering federal contractors, Executive Order 11246, the memo states, “These are the kinds of ‘soft’ affirmative action steps currently required with respect to national origin and religion.” It notes that “[n]umerical placement goals apply only to race, sex, and ethnicity” under the existing order.
The memo does not outright oppose such “numerical placement goals” but appears to acknowledge to Frank that such a step is unlikely, stating, “Requiring numerical placement goals for sexual orientation and gender identity would communicate a strong commitment to diversity and a belief that LGBT workers should receive the same protection as women and people of color. However, doing so may be logistically, legally and politically problematic.”
Instead it offers two other possibilities: allowing for the “soft” affirmative action programs by classifying sexual orientation and gender identity “with national origin and religion for purposes of affirmative action” or “omit[ting] any reference to any form of affirmative action based on sexual orientation or gender identity.”
READ the CAP-Williams Institute memo: CAP-Williams Inst Jan 13 memo.pdf
READ Badgett’s Williams Institute report: Download the report here.
[Photo, above right: Badgett (Photo courtesy UMass-Amherst.) Image, above left: CAP-Williams Institute memo to Rep. Barney Frank (D-Mass.).]