On June 16, the White House announced President Obama plans to sign an executive order forbidding federal contractors from discriminating against employees on the basis of sexual orientation or gender identity.
Although 21 states and the District of Columbia already have laws that protect against employment discrimination on the basis of sexual orientation, there remain 29 states where employers can discriminate against gays with impunity.
Currently, there is no federal law that protects LGBT individuals from employment discrimination.
The Fight Against Discrimination
The proposed Employment Non-Discrimination Act (ENDA) would extend the strong protections included in Title VII of the Civil Rights Act of 1964 to prohibit employers from discriminating against gays—if it could only make it out of Congress.
This bill passed the Senate, but is stalled by Republican inaction in the House. Though the president’s executive order is not a substitute for ENDA—it is limited to federal contractors—it would affect up to 16 million workers.
While perhaps not a complete victory, the executive order will be a big win for the LGBT community—and, since it addresses employment discrimination, it is a hopeful sign for labor, too.
Doing “Everything We Can”
Two days after announcement of the executive order, President Obama spoke about the need to “do everything we can to strengthen unions in this country.”
At a town hall event in Pennsylvania, the president exalted unions for their role in the creation of weekends, overtime, and the American middle class. Even today, union membership boosts wages and benefits for union workers across all demographics.
The president also noted “unions have been back on their heels over the last several decades.” He’s right; union membership in the United States has declined from roughly one third of all private sector workers in the 1960s to around 7 percent of the private sector workforce today.
The decline of unions correlates strongly with the decline in the share of total income going to the middle class.
In light of the president’s recognition of the need to strengthen unions, and his executive order to ban discrimination against LGBT employees of federal contractors, it is instructive to explore how the president himself can strengthen unions using executive action.
Right to Unionize
Just as the president has taken executive action to raise the minimum wage for contract workers and ban discrimination against gays in the workplace, Obama can take similar measures aimed at prohibiting discrimination against employees seeking to join or form unions, by companies that do business with the federal government.
With this action, he would declare employees who exercise their labor rights are entitled to the same anti-discrimination protections he recently granted on the basis of sexual orientation and gender identity, and that have long existed on the basis of race, sex, religion and ethnicity.
It is already illegal to fire someone for trying to organize a union under Section 8(a)(3) of the 1935 National Labor Relations Act; however, the penalties for violating this right are so paltry they do not deter corporations from routinely flouting the law.
Extending to labor organizers protections on par with Title VII of the Civil Rights Act, as the president’s executive order has done for members of the LGBT community, would be a much more powerful deterrent to unlawful corporate behavior.
Such an action by the president would be a concrete step toward strengthening not only unions as an institution, but protecting the individual employees within a workplace that favor a union and want to exercise their labor rights.
More Can Be Done
The decline of unions in this country has been caused, in large part, by a lack of legal protections for union organizers, as detailed by Rick Kahlenberg and Moshe Marvit in Why Labor Organizing Should Be A Civil Right.
At a time when fast food workers are organizing for a $15 minimum wage and the right to join a union without retaliation as part of the Fight for 15 campaign, it is instructive to note these workers are fighting for something ostensibly already codified into law.
Firing or otherwise disciplining an employee for trying to organize a union is already illegal. This fact only reinforces the notion that existing law does not adequately protect an employee’s right to organize.
As the White House conducts its Summit on Working Families in conjunction with the Center for American Progress and the Department of Labor, they would be well advised to keep in mind the executive actions the president has at his disposal.
In order to advance an effort to “do everything we can to strengthen unions in this country,” President Obama should sign an executive order banning discrimination on the basis of union membership, just as he has done on the basis of sexual orientation and gender identity.
Additionally, if and when the Employment Non-Discrimination Act makes its way through Congress, it should be amended to prohibit discrimination against people trying to form a union, while maintaining protections on the basis of sexual orientation and gender identity.