Affirmative Action for LGBT Applicants & Employees: A Proposed Regulatory Scheme

The “ENDA Executive Order” would require federal contractors to take affirmative action to recruit and employ lesbian, gay, bisexual, and transgender (“LGBT”) individuals. If the ENDA Executive Order is signed into law, the Office of Federal Contract Compliance Programs (“OFCCP”) would be tasked with developing the regulations to implement it without having had the benefit of public debate. This article seeks to begin that debate by proposing a set of regulations that would effectuate the purpose of the ENDA Executive Order (e.g., equal employment opportunity for LGBT individuals) without overburdening contractors. With recognition that LGBT employment discrimination laws are novel in the federal context, the article begins broadly with the need for a uniform, federal definition of “sexual orientation,” “gender identity,” “gender expression,” and “sex” to ensure that no one who identifies as LGBT slips through the cracks. Next the article introduces the components of affirmative action plans required by Executive Order 11,246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, and analyzes which components would work as elements of the regulations implementing the ENDA Executive Order. For example, a detailed examination of the two traditional statistical tests required by Executive Order 11,246 – the Utilization Analysis and the Adverse Impact Analysis – demonstrates that both tests, while appropriate analytic tools in the context of race and sex, are entirely inappropriate in the context of sexual orientation, gender identity, and gender expression. Moreover, the article proposes programs and policies tailored to achieving equal employment opportunity for LGBT individuals. These include policies that would ensure the availability of domestic partnership benefits for LGBT employees, afford employees family and medical leave time to care for same-sex partners and their children, prevent federal contractors from enrolling in health insurance benefits programs that deny coverage for treatments and services related to sex affirmation or reassignment, allow transgender employees to access restroom facilities that correspond to their gender expression, and provide for such employees an appropriate dress code and transitioning policy. Ultimately, the article concludes that the regulations implementing the ENDA Executive Order should look markedly different from any of the regulations OFCCP has adopted before. Nonetheless, if the regulations implementing the ENDA Executive Order are crafted prudently, they could advance equal employment opportunity for LGBT applicants and employees without unnecessarily burdening the businesses they regulate