Should Sexual Orientation be a Protected Class?

There have been vocal requests for President Obama to sign an Executive Order which would ban employer discrimination based on sexual orientation for all Federal employees and contractors. Obama publicly supported such an action in both the 2008 and 2012 elections, but has yet to issue an order. The order would make, for the purposes of federal employees and contractors, sexual orientation a protected class, such as race, religion, sex, etc.

President Lyndon B. Johnson issued similar executive orders during his presidency. Executive Order 10925 prohibited discrimination based on race, religion, color, and national origin for federal employees and contractors. He added sex to the list with Executive Order 11375. These orders came around the same time the Civil Rights Act of 1964 offered the same anti-discrimination protection to these classes in any employer with 15 or more employees.

Pregnancy, age, disability, and genetic information all were added to the list over the years. However, Lesbians, Gays, Bisexuals, and Transgender people have not been added as protected classes. The Employment Non-Discrimination Act seeks to do just that, but its passage is doubtful with a Republican controlled House of Representatives. This has added pressure on Obama to pass the Executive Order, which he has sole authority over.

Most businesses already have policies in place which prevent discrimination against people based on their sexual orientation and gender identity. The five largest federal contractors, Lockheed Martin, Boeing, Northrop Grumman, Raytheon, and General Dynamics all have such policies. In private business, 87% of Fortune 500 companies and 93% of Fortune 100 companies have policies against sexual orientation discrimination. Additionally, 7 out of 10 small businesses have similar polices. The business community has already figured out that discriminating based on sexual orientation has a real, negative economic cost.

Which begs the question: what is to be gained by passing such an Executive Order or law? Between 15 % and 43% of homosexuals report experiencing some form of workplace discrimination. Additionally, between 8% and 17% of homosexuals report being passed over for a job or being fired based on sexual orientation. These measures would provide these people legal recourse.

On the other hand, an employee’s ability to sue is an employer’s risk of being sued. Protected classes are riskier to hire. From an employer’s perspective, if they hire a protected person and they don’t work out, firing them may bring a costly lawsuit. Even if such claims of discrimination are baseless, the cost of litigation is a downside that businesses do consider. This may lead businesses to be reluctant to hire people of the protected class.

There are not many protected classes, and adding a new one is a very large decision. Not only should the intent of protecting the class be considered, but also the real world consequences of the law. When it comes to employment, becoming a protected class is not always an asset.

Additional Resources

The Washington Post, Michelle Obama Confronts Protester, Threatens to Leave Fundraiser: http://www.washingtonpost.com/blogs/post-politics/wp/2013/06/04/michelle-obama-confronts-protester-threatens-to-leave-fundraiser/

ACLU, The Drumbeat for LGBT Non-Discrimination Executive Order Grows Louder: http://www.aclu.org/blog/lgbt-rights/drumbeat-lgbt-non-discrimination-executive-order-grows-louder

ACLU, 37 Senators to President Obama—The Time to Ban LGBT Discrimination by Federal Contractors is now: http://www.aclu.org/blog/lgbt-rights-religion-belief-womens-rights/37-senators-president-obama-time-ban-lgbt

Govtrack, Employment Non-Discrimination Act: http://www.govtrack.us/congress/bills/112/hr1397/text

Metro Weekly, White House Won’t Comment on a Federal Contractor Nondiscrimination Policy, But Obama Pledged His Support for Such a Policy in 2008: http://www.metroweekly.com/news/?ak=7139

National First Ladies Library, First Ladies’ Role: http://www.firstladies.org/firstladiesrole.aspx

You Tube, Tomas Sowell, The Unintended Consequences of Affirmative Action: http://www.youtube.com/watch?v=AU4QyOHb9B0

You Tube, Milton Friedman, The case against Equal Pay for Equal Work: http://www.youtube.com/watch?v=hsIpQ7YguGE

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