President Joseph Biden, on his first day in office, signed nine executive orders. One of these was Executive Order (EO) 13988, titled Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The EO also addresses overlapping areas of discrimination such as where race or disability and sexual orientation are compounding factors for discrimination.
What employers are affected by Executive Order 13988?
EO 13988 directs all federal agencies to review their programs, policies, regulations, and documents for consistency with the policy outlined in the order. This will include, but is not limited to, employment, education, housing, health care, and credit.
Employment practices subject to review may include any aspect of hiring or employment where gender identity or sexual orientation discrimination may take place. For example, an agency cannot refuse to hire a bisexual woman because it learns of her sexual orientation or terminate a transgender person who dresses in accordance with their chosen gender identity.
While the private sector is not directly affected by an EO directed toward federal agencies, those companies that act as federal contractors will need to comply with the order. Further, private industry often takes its cues from federal directives, driving policy change in the private workplace.
Who is protected by Executive Order 13988?
Executive Order 13988 signals the current administration’s intent to expand protections to the LGBTQ+ community.
The EO references the June 2020 U.S. Supreme Court case of Bostock v. Clayton County, which held that the discrimination “because of sex” prohibited in Title VII also covers discrimination based on sexual orientation and gender identity. Following the Bostock decision, some federal agencies sought to distinguish the case to avoid applying the holding to certain matters. The EO aims to eliminate any loopholes to that effect and apply the Bostock holding wherever any federal law prevents sex discrimination.
How will the EO impact those facing gender and sexual identity discrimination?
An executive order is not legislation, but EO 13988 changes the priority for federal agencies and the organizations and businesses that take their guidance from them to apply Bostock across their operations.
EO 13988 may prompt litigation if agencies and federal contractors fail to recognize gender identity as a protected class. State and federal laws prohibit discrimination based on protected classes like age, sex, race, disability, national origin, or pregnancy. However, filing a discrimination claim does not follow the same process as filing other types of lawsuits, so it is a good idea to consult with a gender discrimination lawyer.
If you experience discrimination, fighting for your rights not only helps you but others who face the same mistreatment. At The Noble Law, our employment law lawyers take advocacy seriously, standing up for marginalized people in South Carolina and North Carolina. Contact The Noble Law today to schedule a consultation and discuss your rights.