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President Trump Will Continue to Enforce President Obama's Executive Order Prohibiting Discrimination Based on Sexual Orientation and Gender Identity

By Thomas P. Brady / Feb 01, 2017

On July 21, 2014, President Barack Obama issued Executive Order 13672 which prohibited federal contractors and subcontractors covered by Executive Order 11246 from discriminating against applicants and employees based on the applicants' or employees' sexual orientation or gender identity. In a statement today, President Donald Trump's administration announced that it would continue to enforce the sexual orientation and gender identity nondiscrimination prohibitions of Executive Order 13672.

Executive Order 11246 applies to contractors or subcontractors with federal government contracts that exceed $10,000. It requires federal government agencies to include in every contract a provision stating that the contractor or subcontractor will not discriminate against any employee or applicant for employment because of the applicant's or employee's race, color, religion, sex, sexual orientation, gender identity, or national origin. The prohibition applies to, but is not limited to, actions by the contractors or subcontractors regarding "employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship" of employees or applicants. Executive Order 11246 also requires that federal contractors and subcontractors include in all solicitation or advertisements for employees a statement that the contractor or subcontractor will consider all applicants for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

Contractors or subcontracts who have federal contracts exceeding $10,000 should ensure that they:

  • State in all advertisements or solicitations for employment that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin;
  • Send a notice to "each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Executive Order 11246 and  post copies of the notice in conspicuous places available to employees and applicants for employment;"
  • Comply with all provisions of Executive Order 11246, and with the rules, regulations, and relevant orders of the Department of Labor;
  • "Furnish all information and reports required by Executive Order 11246 and by the rules, regulations, and orders of the Secretary of Labor," and permit access to the contractor's or subcontractor's books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders; and
  • Include the provisions of the above bullet points in every subcontract or purchase order unless exempted by rules, regulations, or orders.

If you have any questions about the requirements of Executive Orders 11246 or 13672, please contact Thomas P. Brady at tbrady@clarkhill.com | (313) 965-8291, or another member of Clark Hill's Labor and Employment Practice Group.