There are a variety of policy tools available for ensuring that LGBT individuals are treated fairly under the law, and while most people agree that this is an important goal, not everyone agrees on how to achieve it. This was highlighted recently when Vice President Joe Biden spoke to the Human Rights Campaign about LGBT workplace discrimination.
While workplace discrimination has taken a backseat to same-sex marriage in recent years, it is arguably an even more important issue, as it threatens the very livelihood of LGBT individuals who risk being fired from their jobs based on sexual orientation or gender identity with no legal recourse afterwards.
It is clear that Biden supports employment non-discrimination, though perhaps only through legislative act. In his speech at the HRC, he referred to workplace discrimination as “close to barbaric” and “bizarre.” But advocates were confused that he was silent about the executive order, in spite of the fact that 168 Representatives and 52 Senators recently signed a letter urging Obama to sign the order, which has been sitting on his desk for two years. Biden may favor a legislative solution, but to completely ignore the efforts of advocates to enact change using a different policy mechanism seems dense.
Solving policy problems through executive order is not uncommon. Ten states have provided workplace protections for LGBT employees through executive order. In light of recent controversies such as Arizona’s SB 1062, such protections are becoming increasingly necessary. In February Arizona’s legislature passed a law that would have allowed any business owner to deny service to a gay or lesbian customer. After facing intense national criticism, Arizona Governor Jan Brewer vetoed the law much to the relief of LGBT advocates in Arizona and around the country.
As the New Yorker pointed out in a widely circulated satire piece, allowing businesses to discriminate against LGBT individuals makes little economic sense. Alienating potential customers in any group seems a poor policy, as does allowing businesses to make hiring and firing decisions based on factors that are completely unrelated to job performance, such as a person’s sexual orientation or gender identity.
Currently, only 17 states and D.C. prohibit workplace discrimination based on sexual orientation and gender identity, with an additional four protecting only sexual orientation. That leaves 29 states with absolutely no protection for LGBT employees. Considering the political barriers of passing employment nondiscrimination laws in red states, LGBT advocates have long been pushing for a federal Employment Non-Discrimination Act (ENDA), or H.R. 1755, S. 815.
While the Senate passed this bill in November, the House has done little to advance the measure. As a result, LGBT advocates have begun considering alternative methods of ensuring LGBT workplace security. One option is for President Obama to sign an executive order that would be the presidential equivalent of Congress’ EDNA bill. While it would not have the full force of law, an executive order could go a long way in persuading states to eliminate workplace discrimination and would provide a clear pro-LGBT stance from the White House. However, in spite of Obama’s general support for LGBT rights, this executive order has not been forthcoming.
It is undeniable that Obama’s presidency has facilitated great strides for the LGBT community. However, what matters now is the extent to which Obama will be able to claim responsibility for those strikes 50 years down the road. Biden may be willing to give lip service to LGBT employment protections, but Obama has been remarkably inactive in taking tangible steps to advance that measure. This is unacceptable, especially considering ENDA was one of Obama’s campaign promises during his 2008 campaign for the presidency. Unless Congress or the President take action soon, protection for LGBT employees will remain a political chess piece and yet another one of Obama’s broken promises.