Vice President Joe Biden says he doesn’t see any reason why the president shouldn’t use his executive authority to ban workplace discrimination against lesbian, gay, bisexual and transgender employees of federal contractors. But he said the better solution would be for Congress to pass the Employment Non-Discrimination Act, which would have broader implications.
“I don’t see any downside,” Biden said in an interview with The Huffington Post, when asked about President Barack Obama’s reluctance to take executive action on the issue. “The way to do this is to pass ENDA. That ends it everywhere.”
The fact that Biden couldn’t point to any negative consequences of executive action may be a small win for LGBT rights groups, who are largely puzzled by the White House’s refusal to act. President Barack Obama made a campaign promise in 2008 to take executive action on LGBT job discrimination, but nothing has happened since. When the issue comes up in White House briefings, the press secretary says Congress needs to take the lead, since legislation would go further than an executive order. If Congress passed ENDA, it would make it illegal nationwide to fire or harass someone at work for being LGBT. In contrast, an executive order would only apply to federal contractors.
But the either-or argument is a false one. When it comes to workplace discrimination based on race or sex, for example, people have protections under federal employment law as well as under federal contractor executive orders. One does not trump the other; they work hand in hand, with different penalties and remedies in each context.
“If we had ENDA but no executive order, you could sue a federal contractor,” explained Sarah Warbelow, legal director for the Human Rights Campaign. “But there’s no ability for the government to say, ‘Hey, it’s completely inappropriate that you engaged in discrimination against a class of people, and if you want a contract with us again you have to stop that behavior.'”
An executive order would allow the government to terminate a contract based on a company’s discrimination against its workers, which “creates a very high incentive for contractors” not to discriminate, Warbelow said. “It’s a very big deal, and it’s also why we need both ENDA and the executive order.”
ENDA has hit a wall in the House, where Speaker John Boehner (R-Ohio) is refusing to give it a vote. In the meantime, the president has spent much of this year touting his ability to get things done via executive power, but has been silent on this front. If Obama did sign an executive order banning LGBT workplace discrimination, it would protect as many as 16 million federal contractors.
During the interview, HuffPost pressed Biden to explain why Obama won’t use his authority to ban workplace discrimination, particularly given the administration’s strong record on LGBT rights. He punted.
“He doesn’t have the ability to ban it,” the vice president said, calling ENDA “the single best, most significant way to do this. I’m still hopeful.”