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By:  Rhonda Armstrong – 6/19/14

         Hot off the press: President Obama seeks to issue yet another Executive Order regarding workplace protections for federal contractors – this time extending non-discrimination protections on the basis of sexual orientation and gender identity.   See: http://www.huffingtonpost.com/2014/06/16/obama-enda_n_5499377.html. To date, neither Federal nor Michigan statutes extend protections to these categories, despite much prompting from lesbian, gay, bisexual, and transgender rights (LGBT) groups.

          President Obama has already been criticized in the past for issuing Executive Orders on matters that Congress refuses to make law, including requiring federal contractors to pay higher minimum wages and prohibit retaliation for disclosing or inquiring about pay. This is another example. To date, while Democrats have pushed for passage of the federal Employment Non-Discrimination Act (which would extend non-discrimination protections to LGBT groups), it has only passed Senate approval (in November 2013) and has since been stalled in the House.

          The anticipated order will, however, now require all federal contractors and subcontractors to extend such protections to employees. As noted in our March 25, 2014, Blawg post, many businesses operate without realizing they are federal subcontractors. This is the second Executive Order issued in 2014 that prompts employees to determine their employer’s status.

          If your organization is not a federal contractor or subcontractor, however, the planned executive order will not apply to you. All the same, Michigan employers must beware that sometimes actions that seemingly appear as sexual orientation discrimination may still be actionable as “sex” discrimination even absent specific protections in Michigan. For example, treating employees differently because they are not sufficiently feminine or masculine has been recognized to be illegal for years.

          Also, employers must beware that 21 states, the District of Columbia, and some Michigan cities have enacted local ordinances that extend protections on this basis including Detroit, Ann Arbor, Ferndale, Lansing, Huntington Woods, etc. Also, some contracts (e.g., with local governments) may require businesses to not discriminate on this basis.

          I am often asked whether a Michigan employer should extend its non-discrimination, harassment, and retaliation policy to sexual orientation. In my opinion, at this juncture, it is a better practice to refrain from extending your written policies to categories beyond what the law or your client contracts require. Unfortunately, a judge or jury may hold you to a higher standard based upon your own policy. However, in practice, it is wise for employers to train their supervisors to avoid discrimination and harassment on the basis of sexual preference and promptly address known or suspected incidents, notwithstanding. This sends a message that you will not tolerate archaic or biased opinions in the modern-day workplace.