Obama punts on gay discrimination ban

posted at 4:16 pm on April 12, 2012 by Tina Korbe

Barack Obama knows the calculus. He figures he can afford to not issue an executive order to explicitly ban the hiring or firing of individuals based on their sexual orientation or gender identity because he has already proved his commitment to LGBT issues with his support for the repeal of Don’t Ask, Don’t Tell and with his instructions to the Justice Department to not defend the Defense of Marriage Act. Seriously, that’s his logic.

President Barack Obama won’t issue an executive order anytime soon banning employment discrimination against gay and lesbian workers by federal contractors, officials said Wednesday, disappointing some gay-rights activists who had hoped for action on the issue ahead of the election. …

The order had long been under consideration by the Obama administration and had been reviewed by officials at the Justice and Labor departments, according to two people with knowledge of the process. But White House officials decided to hold off, at least until after the presidential election, these people said.

Several people attending the meeting said they left with the impression that the administration is wary of imposing additional requirements on businesses ahead of the election, not that it worries about taking a stand against employment discrimination. Republicans have repeatedly pilloried Mr. Obama for what they characterize as “job-destroying” rules, often pointing to regulations affecting the environment, health care and financial transactions.

If the reaction of one activist is any indication, Obama’s do-just-enough-but-not-too-much strategy works:

Robert Raben, a lawyer who has worked on this issue since 1993 and was also at the meeting, said any disappointment is counterbalanced by his satisfaction with Mr. Obama on other points. He said his understanding was that the order wasn’t being issued now because of concerns that Mr. Obama would be seen as over-regulating business.

“I’m encouraged to be reminded that the administration is so fantastic on LGBT issues generally,” he said. “I am frustrated that if tactics don’t come out the way certain advocates want, it is cast as a negative.”

‘Course, Raben is just one activist — and plenty of others are upset. Nevertheless, the episode remains an important reminder of Obama’s ideological-but-not-too-ideological approach to governance in his first term. In a second term, well, he’d have “more flexibility.”

Regarding the substance of the executive order, though: I’d like to revisit the subject of discrimination in hiring and firing. Recently, I wrote about the case of a law professor who was rejected for a position at the Iowa University School of Law because she has conservative political views. In that post, I came close to outright arguing that employers should be able to discriminate on whatever basis they so choose, assuming that most employers care most to have an employee who will do a job well. If an employer chooses to hire an identically qualified man over me because he’s a man, fine. That’s his prerogative. If an employer chooses to hire a less-qualified man over me because he’s a man, it’s still his prerogative — but that’s just plain stupid.

A part of me is still strongly considering sticking to this line — that the government shouldn’t interfere in hiring or firing at all. That means I would not only be against this particular executive order or the Employment Non-Discrimination Act that is currently stalled in Congress, but also any kind of legislation that purports to address hiring and firing discrimination of any kind. It’d be no way to do business to hire and fire at the drop of a hat for arbitrary reasons like a person’s religion, gender, sexuality, race, etc. — but the business that engaged in such discriminatory practices would eventually pay the price (no truly decent employee would want to work there!), so why does the government need to be involved? I would like to note, though, that the case of the law professor was different because Iowa University College of Law is a taxpayer-funded school and so should be subject to what taxpayers deem to be fair hiring practices. It makes sense to me that Congress would pass laws to prevent unfair discrimination in hiring and firing at public institutions.


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