With Congress Failing to Act on ENDA, President to Issue Executive Order; New Same-Sex FMLA Rule From Labor

June 20, 2014

This week, it was announced that the President will sign an executive order banning employment discrimination by government contractors on the basis of sexual orientation and gender identity.  The signing is expected to be delayed until after the Supreme Court issues its decision in the Hobby Lobby case dealing with religious exemptions to employer mandates so that the Court's decision can be factored into the crafting of the executive order.  The White House has been under considerable pressure from the human rights community to sign such an order for several months, but the President has resisted, purportedly in hopes that Congress would pass the Employment Non-Discrimination Act (ENDA) instead.  ENDA was passed last year by the Senate, but no action is scheduled or expected in the House.  With that as the backdrop, it seems likely that the executive order will closely track ENDA.  Because it will apply exclusively to federal contractors, one major difference with ENDA is that enforcement will probably reside within the Office of Federal Contract Compliance Programs, rather than the Equal Employment Opportunity Commission.  However, it is unlikely that an affirmative action requirement will be included since ENDA specifically disallows quotas, the collection of statistics, or preferential treatment.  ENDA also precludes "disparate impact" claims; i.e., those where a neutral policy has a disproportionate adverse effect on a protected group.  Separately, in response to the U.S. Supreme Court's June 2013 ruling in United States v. Windsor, the Department of Labor posted its proposed rule clarifying that an employee is eligible for FMLA leave under a "place of celebration" standard to care for a same-sex spouse, regardless of the employee's state of residence.