Why did Obama refuse executive order?

Joe Davidson
Columnist April 12, 2012

If President Obama had issued an executive order prohibiting discrimination by federal contractors against gays and lesbians, he would have followed a proud tradition set by Democratic and Republican presidents.

Instead, he punted.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

At least five previous presidents issued anti-discrimination directives, according to a count by the American Civil Liberties Union, but those did not cover gays and lesbians in companies doing business with the government. Seventy-two members of Congress sent the president a letter last week urging an order prohibiting discrimination against that group.

When the administration decided not to go that route, it issued a statement that made no mention of the proposed order, instead focusing on an unlikely legislative fix.

The president “has long supported an inclusive Employment Non-Discrimination Act (ENDA), which would prohibit employers across the country from discriminating on the basis of sexual orientation and gender identity,” said Shin Inouye, a White House spokesman. “The president is committed to lasting and comprehensive change and therefore our goal is passage of ENDA, which is a legislative solution to LGBT (lesbian, gay, bisexual, transgender) employment discrimination.”


U.S. President Barack Obama delivers remarks at the 15th Annual Human Rights Campaign National Dinner at the Washington Convention Center in Washington, D.C., on Oct. 1, 2011. Obama told the largest U.S. gay-rights group that the progress made on policies that have benefited the gay community still is threatened by opponents who want to “turn the clock back.” (Kristoffer Tripplaar/Bloomberg)

But no one expects that legislation to pass anytime soon.

“There is no way the ENDA . . . will pass this Congress,” said Winnie Stachelberg, an executive vice president of the Center for American Progress, a think tank with close ties to the White House.

So why not issue the order now?

Gay activists blame election-year politics.

Tico Almeida, founder and president of Freedom to Work, a national LGBT advocacy organization, and other gay activists attended a meeting with top White House officials who provided a rationale for declining the order, explanations Almeida found “completely unconvincing and shallow.”

“This is a political calculation that cannot stand,” he said.

“Absolutely not,” replied White House press secretary Jay Carney. “The approach we’re taking at this time is to try to build support for passage of this legislation, a comprehensive approach to legislate on the issue of non-discrimination.”

If the calculation is to avoid upsetting some voters by pushing for gay rights, it’s too late now. The Human Rights Campaign has a document called “Obama Administration Policy, Legislative and Other Advancements on behalf of LGBT Americans” that is six typed pages long.

“This is an administration that is fully committed to LGBT equality and has worked tirelessly” for it, Stachelberg said.

That’s why the administration’s refusal to issue an order that would have been mild compared with its other positions is confusing. Obama’s advocacy for gays and lesbians to serve openly in the military and his opposition to a law limiting marriage to heterosexual couples for federal purposes have been much more controversial.

An executive order is needed, “even if Congress were to defy the political odds and pass ENDA today,” says a paper on the Center for American Progress Web site. An executive order, the paper by Jeff Krehely and Crosby Burns explains, would cover more people than the legislation, which would apply to firms with at least 15 employees. An executive order also could provide an additional enforcement mechanism and another level of compliance evaluation, the authors wrote.

Those arguments, however, apparently weren’t persuasive enough for the president.

“I hope this decision will be revisited,” said Rep. Lois Capps (D-Calif.), who signed the letter, “especially since the American people don’t want their federal tax dollars used to support discrimination.”

EEOC resignation

Stuart J. Ishimaru, who joined the U.S. Equal Employment Opportunity Commission in 2003, will resign this month. He was the EEOC’s acting chairman during the first 15 months of the Obama administration, from Jan. 20, 2009, until April 7, 2010. His second term expires July 1.

As a commissioner, he moved “to reinvigorate the agency’s emphasis on race discrimination issues,” according to a commission statement. As acting chairman, Ishimaru “worked to rebuild the EEOC, which had become under-funded and under-staffed,” the statement said. “He dedicated substantial agency resources to a multi-million dollar training effort — the largest the agency had conducted in at least a decade.”

EEOC Chair Jacqueline Berrien called him “a tremendous colleague” whose “accomplishments as a member of the Commission and Acting Chairman have been exceptional.”

“We will miss his fervent commitment to civil rights law enforcement,” she said.

Gabrielle Martin, president of the American Federation of Government Employees’ National Council of EEOC Locals, also praised Ishimaru.

“In my view, he was a really good commissioner,” she said in an interview. Ishimaru was “almost fearless,” she added, in engaging in “public dialogue with people who had opposing views” to reach a beneficial conclusion.

Ishimaru was not available for comment.

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson. Follow the Federal Diary on Twitter: @JoeDavidsonWP.

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