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Tuesday, July 22, 2014

Religious Pushback Expected On LGBT Executive Order

Law360, New York (July 21, 2014, 8:27 PM ET) -- Although President Barack Obama is no stranger to using federal contracts as a testing ground for employment reform measures, religious employers may be more resistant to Monday's executive order banning discrimination against gay and transgender contractor employees than to other recent efforts, attorneys say.


“I think this one is going to create more pushback because the dollar threshold is so low it's going to affect a lot of companies,” Horvitz said. “Given the Supreme Court's decision, given the religious aspects of some of this, and given the low dollar threshold, I think there are going to be a lot of comments submitted when the [U.S. Department of Labor] issues its proposed rules.”

...Although top contractors may not have too much trouble adjusting to the new policies, the executive order will add new responsibilities for midsized, smaller and closely held corporations, especially ones that operate in states with no legal protections for gay and transgender workers, according to Laura Maechtlen, a partner at Seyfarth Shaw LLP.

“It's really kind of a patchwork of legal protections for LGBT workers,” Maechtlen said. “This order, at least for federal contractors, would round out those protections and apply them across the board so that you don't have to rely on state and local laws.”

The fact that the order explicitly prohibits discrimination for gender identity is a significant step, because companies have lagged somewhat in recognizing that kind of discrimination as a problem that needs correction, Maechtlen said. Many companies only became aware of the need to combat discrimination based on gender identity after the U.S. Equal Employment Opportunity Commission's 2012 decision in Macy v. Holder, which found that Title VII protects transgender workers from discrimination.

“I think the gender identity piece is a really important one, because employers have come to that late in the game,” Maechtlen said. “The concept of including gender identity was included late to ENDA, and it's also something that employers have been learning more about over time.”


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