PRESIDENT OBAMA AMENDS EXECUTIVE ORDERS 11246 & 11478 AFFORDING PROTECTIONS FOR LGBT & SEXUAL ORIENTATION

The amendments were issued on July 21, 2014 amid controversy regarding who is who is not exempted.  The first amendment includes gender identity and sexual orientation as protected groups in EO 11246, which applies to federal contractors, and the second amendment prohibits gender identity discrimination in EO 11478, which applies to federal agencies.  The amendment to EO 11246 is scheduled to go into effect in early 2015.  The amendment to EO 11478 is effective immediately.

Both amendments were well advertised and, therefore, are not surprising.  What did surprise many is that there are no exemptions for religious affiliations.  Normal Title VII exemptions are not affected.  For example, religious affiliated churches may discriminate for any reason when choosing a minister.  They may also discriminate based on religion for positions other than minister (e.g., teaching in a parochial school).  However, they are not entitled to discriminate for non-minister positions based on race, age, national origin, sex or disability (like the rest of the world).  Thus, the amended EO 11246 adds gender identity and sexual orientation to this list of “others” that religious-affiliated contractors (and other contractors as well) will have to include in their non-discrimination clauses (and other aspects of EO 11246 I suspect).

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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