Sexual Orientation Bias Claims Against Contractors Triple

But overall number of claims remains small

Allen Smith, J.D. By Allen Smith, J.D. November 30, 2018
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​Claims of sexual orientation discrimination against federal contractors more than tripled this year and gender identity discrimination claims doubled. While the numbers are small—65 sexual orientation bias complaints and 20 transgender bias complaints in fiscal year 2018, according to Bloomberg Law—the upward trend has been steady from the six complaints lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals filed with the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP)  three years ago, when the OFCCP began enforcing LGBTQ protections. Last year, there were 14 sexual orientation bias complaints and nine transgender bias complaints. Federal contractors employ almost one-quarter of U.S. employees, Bloomberg reported. We've gathered articles from SHRM Online and other trusted media outlets about the executive order prohibiting discrimination against LGBTQ workers.

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Executive Order Prohibits Discrimination

Former President Barack Obama issued an executive order in 2014 prohibiting federal contractors from discriminating against workers and job applicants based on sexual orientation or gender identity. "In too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense," he said on July 21, 2014. "So I firmly believe that it's time to address this injustice for every American."

(SHRM Online)

Most Companies Already Prohibit LGBT Bias

Most federal contractors already prohibit discriminating against applicants and workers based on sexual orientation, according to Cornelia Gamlem, president of the GEMS Group in Herndon, Va. Even though the executive action only affected federal contractors, the decision to extend the employment protections to LGBTQ workers was viewed at the time as signaling a trend toward accepting LGBTQ workers and possibly setting the stage for eventual passage of federal anti-discrimination legislation.

(SHRM Online)

Executive Order Remains in Place

President Donald Trump's administration announced in early 2017 that it would continue to enforce this executive order. "President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election," the White House said in a statement. "The president is proud to have been the first-ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression."

(SHRM Online)

Regulations Blocked

Trump signed a resolution in 2017 to permanently block regulations that would have implemented an Obama administration executive order requiring contractors to report labor violations and preventing them from receiving contracts if they had serious infractions. "The president's signing [of] the resolution is a relief to many government contractors who were quite concerned over the breadth of the disclosure requirements," said Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va. The blocked regulations "would have required companies to list matters that were far from final." A court had temporarily blocked the regulations, but some criticized the president's resolution as shifting the burden to LGBTQ individuals to prove discrimination.

(SHRM Online)

EEOC, DOJ Disagree Over Title VII's Scope

In addition, a split in interpretation of Title VII of the Civil Rights Act of 1964 has emerged during the Trump administration. The Equal Employment Opportunity Commission (EEOC) interprets the law to prohibit discrimination based on sexual orientation. The Justice Department doesn't. The 2nd U.S. Circuit Court of Appeals agreed with the EEOC earlier this year, as has the 7th Circuit. But other appeals courts have ruled that the federal law doesn't prohibit sexual orientation bias. Altitude Express, the employer in the 2nd Circuit case, has asked the Supreme Court to review the appeals court's decision.

(SHRM Online)

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Sexual Stereotyping Prohibited

Title VII clearly does prohibit sex stereotyping. Ann Hopkins won a Supreme Court employment law case in 1989 resulting from her denial of promotion to partner at the accounting firm PwC, then known as Price Waterhouse. Hopkins claimed she was denied a promotion in 1984 for being "too macho." A boss recommended that she act more femininely. She resigned and sued, taking her case to the high court, which ruled that the law prohibits sex stereotyping. After winning her case, she rejoined Price Waterhouse as a partner. Her case became the underpinning of many decisions involving gay or transgender individuals. Hopkins died this year.

(The Washington Post)

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