ENDA’s Executive Order is Signed…What’s Next?

What’s next for the LGBTQ workforce?

President Obama signed an executive LGBT Non-Discrimination Order into effect last week, categorically barring discrimination based on sexual orientation or gender identity among federal contractors and federal employees. With 24,000 companies doing business with the federal government, the executive order is an important step to full LGBT workplace equality until a comprehensive federal law covers the nation’s entire workforce. He even resisted the requests of religious groups to exempt businesses on the basis of their religious beliefs to discriminate like Hobby Lobby was able to do.

President Obama, I thank you and I am grateful for what you have done with what you had to work with. Nevertheless, there are still a whopping 80% of American workers who are unprotected as this executive order only affects 20% of the workforce of the United States. Workers who are at risk daily of legal and sometimes federally subsidized discrimination simply because of their gender identity and sexual orientation. The Sisters of St. Joseph of Boston’s Fontbonne Academy can legally fire Matthew Barrett because of sexual orientation. This list goes on and on and happens every day. Remember, eight out of ten people in America DO NOT work for a federal contractor or the federal government. So what’s left for them?

ENDA is not the sole answer. The Employment Nondiscrimination Act (ENDA) is supposed to outlaw discrimination based on sexual orientation or gender identity. All employees working for a covered employer would be protected as an amendment to Title VII of the Civil Rights Act of 1964. The amendment adds sexual orientation and gender identity to the list of protected classes that employers may not rely on in making employment decisions, such as race and national origin. ENDA would prohibit discrimination based on sexual orientation or gender identity in every part of the employment relationship, from hiring to benefits, compensation, discipline, and firing. It would protect employees from discrimination based on their actual or perceived sexual orientation or gender expression/identity. This provision protects employees who are going or have gone through gender transition or reassignment. It would also protect employees whose behavior doesn’t conform to stereotypes about gender.

Sounds great right? But look at what is left out…

ENDA creates exceptions and exemptions that do not apply to the rest of Title VII. They include:

• Religious organizations would not have to comply with ENDA
• The military would not have to comply with ENDA, and ENDA would have no affect on current laws regarding veteran preferences in employment.
• ENDA will not prohibit employers from enforcing reasonable dress code and grooming rules, as long as employees who have already undergone gender transition, or are transitioning while employed, are allowed to conform to the standards of the gender to which the employee is transitioning.
• ENDA will not require employers to create new or additional facilities (such as changing rooms and rest rooms).
• Disparate impact claims won’t be allowed under ENDA. In a disparate impact claim, employees contend that an employer’s facially neutral policy or practice had the effect of disproportionately screening out a particular group.

ENDA is often touted as the equal rights “savior” for the LGBTQ community. However, ENDA gives businesses and corporations with religious affiliations a license to discriminate because of their affiliation. Remember Hobby Lobby?

An Executive Order has been signed and the unaware pundits are parading around slapping each other on the back in congratulations. Historic, epic, groundbreaking, yes! Yet, no one is stopping to address the three ton pink elephant in the room. We have to do better, go further… so what’s next? The promise of equality is not full equality, the fight continues.

Tonie Snell is the CEO and Chief Job Mingler for 925HIRE, LLC. 925HIRE is a full-service staffing firm dedicated to a diverse and equitable workplace. Specializing in building culturally diverse expert staffing and training solutions throughout the United States.