An Executive Order Banning Employment Discrimination

BY ARI EZRA WALDMAN

In June 1941, President Franklin Roosevelt issued Executive Order 8802, which required any part of the federal government involved in defense contracts to ensure that vocational and training programs were administered without discrimination as to "race, creed, color or national origin." All defense contracts were to include provisions that barred private contractors from discrimination, as well.

As we approach the 70th anniversary of EO 8802, Senator Tom Harkin (D-IA) has voiced support for a similar executive order from President Obama that would protect from discrimination any gay and lesbian employees of federal contractors. At least one other Democratic senator has already supported Senator Harkin's call in a speech at a fundraiser. And yet, despite support from our Democratic allies in this and the previous Congress, the Employment Non-Discrimination Act (ENDA) — legislation that would have banned discrimination against gays and lesbians in public and private employment — never made it to a vote.

Given ENDA's failure in the last Congress and Republican opposition in the House, should President Obama issue an executive order protecting gays and lesbians from employment discrimination? Or, does ENDA's failure in Congress mean that any executive order would be an end run around the duly elected legislative branch? How would this executive order be different than ENDA? Would ENDA, if it ever passes, make this order moot? Does this executive order set a bad precedent?

To answer these questions, I spoke with Tico Almeida, a civil rights litigator at a leading employment law firm in Washington, DC. Mr. Almeida, as a veteran of Congressional wars on ENDA and an employment law expert, has a much richer storehouse of knowledge on these subjects than I. But, we both agree on the need for and legality of this executive order.

In the spirit of healthy debate, though, Mr. Almeida and I — friends since 2005 — challenged each other the best we could.

Mr. Almeida and I started with some basic information, but in the spirit of debate, I starting playing the devil's advocate.

Our discussion and analysis of this proposal AFTER THE JUMP…

AEW: Why do we need this executive order?

Tico Almeida (TA): If a federal contractor unjustly fires an aerospace engineer just because she is lesbian or just because she is transgender, and then replaces that engineer with someone who is less qualified, there are two big losers:  1) the victim of the anti-gay discrimination who is out of a job; and 2) the American taxpayers who are paying for the lesser-quality services of the discriminatory federal contractor.

AEW: That certainly makes sense. But, could a future administration use this power to do something you do not like. For example, if we support President Obama's power to issue this executive order, do we not also have to support a conservative president's power to give the same consideration to groups he or she favors, like Evangelical Christians or Mormons or Eskimo poets?

TA: Current federal policies at the Department of Labor already prohibit religious discrimination at the workplaces of federal contractors. A contractor who is an evangelical Christian cannot discriminate against a Mormon employee. A contractor who is devoutly Protestant cannot discriminate against his Catholic employees. A contractor who is Atheist cannot discriminate against her evangelical Christian employees. All of those kinds of religious workplace discrimination are morally wrong, as well as bad for workplace efficiency and bad for the U.S. taxpayer too.

AEW: Agreed. Jews and Catholics have been two religious minorities, in particular, that could have benefited from such religious protection long before Congress or the Supreme Court got around to protecting them. Signs such as "Irish Need Not Apply" or "No Jews" were quite popular in Manhattan during parts of the 19th century. But, what the executive giveth, the executive can taketh away. So, if President Obama issues this protection, what is to prevent a future conservative president from rescinding it entirely or granting exemptions to religious business owners who claim their personal religious beliefs bar them from hiring gays?

TA: It can indeed be rescinded. But I predict a future Republican president will not rescind, but rather quietly halt all efforts to enforce the Obama policy. That way there is no public backlash. But in any event, the possibility of rescission or under-enforcement in the future isn't a sufficient reason not to push for these good-government, civil rights protections in the first place.

AEW: Indeed, but I disagree with the rescission issue. It may be a boon to a conservative president's base to publicly turn back the clock on discrimination against gays. But, your point stands: Just because we take our socks off at night doesn't mean we shouldn't put them on in the morning.

You admit this can just be rescinded, though. Isn't that the kind of uncertainty that the business community hates? Given their uncertainty about the EO's lasting future, could employers simply delay hiring as they wait for a conservative president to whom they donated millions? And isn't that precisely what we do not want in a bad economy.

TA: I think most of Corporate America will actually support this EO. Many Fortune 500 companies have already endorsed ENDA, which is stronger than the Executive Order.  In fact, the business community is years ahead of the federal government on these issues of fairness and equality in the workplace. Big federal contractors like Boeing and Raytheon have already passed LGBT non-discrimination policies. Some of those corporate policies explicitly say that discrimination hurts their efficiency and their bottom line. I think those corporate policies are correct, and the U.S. government should follow the lead of Corporate America.

AEW: That's a fair point, but I disagree with you. I think it is entirely rational for some in the business community to oppose this move, and it would not be because big business is anti-gay. Far from it. We saw the importance of private non-discrimination policies where universities and law schools kept the military at arms' length until the repeal of Don't Ask, Don't Tell. And we saw how private companies' employment protections might be the only protections for employees in places like Tennessee and other states without their own ENDAs. Still, businesses want these rules to come from the ground up, from their board rooms, rather than from Washington. That, of course, is no reason to oppose the EO. Sometimes, businesses need a little kick in the pants.

I notice you have no response to my economic argument — namely, that the uncertainty associated with an easily rescinded rule generally upsets private hiring. Professor Jonathan Meer at Texas A&M is writing extensively about this and both classical economic theory and practical evidence over the past 20 years suggest that private economic productivity is hampered by legal uncertainty, especially in the tax code.

TA: I understand the professor's arguments about the benefits to business owners of consistency in the laws they deal with – that's actually a great argument for passing ENDA through the U.S. Congress once and for all. We will outlaw anti-LGBT discrimination in all 50 states and the District of Columbia once and for all. That's a nice, consistent, pro-efficiency, civil rights policy for the entire country.

AEW: That's a great argument! Let's get back to the basics. Is there precedent for this kind of EO?

TA: Yes, there is strong historical precedent for the proposed ENDA executive order for federal contractors.  In 1941, President Franklin Delano Roosevelt signed Executive Order 8802. Two years later, President FDR broadened the coverage of the executive order to cover all government contractors in all industries.  We have followed these policies without any problem for the past seven decades – through Republican administrations and Democratic administrations.  This policy is about civil rights and good-government, and I don't believe that is a partisan issue.

AEW: Again, we agree. But EO's have proliferated since the time of FDR. Presidents issue hundreds if not thousands in their terms, and liberals lambasted the second Bush Administration for its usurpation of power from Congress with its EOs. How are we to be intellectually consistent when we oppose broader executive power under President Bush, but support it under President Obama.

TA: You've made that argument before, Ari, and it's a tired one. There is strong historical precedent for creating an executive order promoting civil rights before the corresponding federal legislation makes its way through the House and Senate.  FDR signed his executive orders in the early 1940's.  It took another 20 years for Congress to pass the Civil Rights Act.  I don't think ENDA will take another 20 years – I'm hopeful ENDA can become law in 2013 or so.  But there is good historical precedent for a President creating the executive order prior to the always-slow Congress getting around to doing the right thing.

AEW: That's fair. Maybe as an academic, I am free to have an intellectual commitment to balance of powers even when it doesn't always make sense in the real world.

Another canard about this proposal is that it grants special protections to gays and lesbians. It's a ridiculous argument. Tell us how.

TA: This policy is about equal rights, not special rights.  In fact, I strongly oppose workplace quotas based on sexual orientation.  I don't think straight business owners should have quotas for hiring gay employees, and I don't think gay business owners should have quotas for hiring straight employees.  ENDA specifically and explicitly precludes quotas based on sexual orientation. That's the correct policy. I think it would be smart for the proposed ENDA executive order to also prohibit quotas for sexual orientation and gender identity at federal contractors.

AEW: What will this EO mean for President Obama's legacy?

TA: I think the Obama Administration has done a strong job on LGBT equality issues. Once the ENDA executive order is in place, it will be enforced by U.S. Labor Secretary Hilda Solis, who believes deep in her heart in promoting equal rights for LGBT Americans and enforcing U.S. labor laws for all workers in the United States. Under her leadership, I am sure that the proposed policy will be enforced effectively and fairly.

As for the Obama Administration's overall track record, based on signing the federal law against hate crimes, the imminent repeal of DADT, as well as the President's decision to drop the defense of the unconstitutional and discriminatory DOMA and to argue instead for “heightened” constitutional protections, I think President Obama has already accomplished more than any other President in U.S. history in terms of advancing equal rights for LGBT Americans. But there is so much more for all of us to do, including the President and the U.S. Congress and the Governors and the state legislatures and LGBT organizations and grassroots advocates. I think the ENDA executive order for federal contractors is a logical next step. I hope it will build momentum for passing ENDA in a few years.

AEW: You and me both. I would like to thank Mr. Almeida for taking the time to talk with us today.

***

Mr. Almeida makes some excellent points, but while we both think this EO is good policy, I think it a fool's errand to push for this EO right now. The ACLU is clamoring for action yesterday, as are other gay rights activists. But, immediate action, given our country's pressing problems, is unwise. It would give President Obama's conservative opponents a window to call the president out of touch or beholden to a radical interest group when he should be worried about our massive debt. It would make gays and gay rights a political ping pong ball in the 2012 election, which is a place we might not want to be.

If not now, when? Mr. Almeida says he understands that "it might take a year or so to get the proposed policy through the bureaucratic clearance process," but is calling for this EO sometime during President Obama's first term. I agree that would be preferable. President Obama, though a strong believer in legislative supremacy, has shown a remarkable willingness to use the executive powers to do what he thinks is right. We saw this with DOMA and heightened scrutiny. As they say, in for a penny… This proposed EO would be a small, but important, step unlikely to offend the President's respect for separation of powers.

That, in the end, is the most striking facet of the proposed non-discrimination EO. It is utterly uncontroversial. As Mr. Almeida pointed out, there is ample precedent for EOs in anticipation of congressional action and this proposal is simply the natural extension of laws on the books. Plus, so many of our private business and even entire industries have expanded non-discrimination policies that include sexual orientation protections. Finance, law, almost every hospital, higher education and defense companies, to name just a few industries, are committed to not discriminating against gays and lesbians and they know they must not discriminate lest they lose out on the best and brightest graduating today. This executive order would be a profound step toward equality and allow gays and lesbians to seek redress when discriminated in the federal context, but it would not change much about how corporate America and the federal government already work.

As a side note, dear Towleroad Reader: I hope this can be the first in series of interviews with gay lawyers working to protect gay rights in the trenches every day. Eventually, I would like to move this to a video format. Let me know your thoughts in the comments.