Executive Order Banning Employment Discrimination; Proposed DOL Changes to FMLA

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update

On Monday, June 16, the White House announced a plan to sign an Executive Order that bans all federal contractors from discriminating against employees based on their sexual orientation. This Order stems from a bill that was passed in the Senate in 2013 - the Employment Non-Discrimination Act - but died in the House of Representatives. This law would add sexual orientation to the list of protected classes under federal law, which already includes non-discrimination based upon race, color, religion, gender and national origin. President Obama has acted similarly in the past, signing an Executive Order that increased the minimum wage for federal contractors, as well as an Order that affected overtime pay for federal contractors. While the President cannot extend this non-discrimination protection to all Americans, no matter their employment status, he is able to extend this coverage to those who do business with the federal government. There is no word yet on a date on which this Executive Order will be signed.

Proposed DOL Changes in FMLA Eligibility for Same-Sex Couples
The Department of Labor has recently proposed a rule regarding an extension of Family Medical Leave Act (FMLA) benefits. As it currently stands, this proposed rule would extend FMLA benefits to all eligible employees in legal, same-sex marriages, regardless of where they reside. This proposed rule was enacted pursuant to the 2013 United States v. Windsor opinion that ruled the definition of "spouse" as between a man and a woman under the Defense of Marriage Act (DOMA) was unconstitutional for federal purposes. The DOL's language would change the FMLA definition of "spouse" so that an eligible employee in a legal, same-sex marriage can be eligible for FMLA leave for a spouse or family member. Under current FMLA regulations, "spouse" only applies to a same-sex couple that resides in a state which recognizes same-sex marriage; now, it would apply to any same-sex married couple, no matter the state of residence. Essentially, the proposed rule would make FMLA eligibility based upon the law of the place in which the same-sex couple was wed. The DOL is accepting comments regarding this proposed change until August 22, 2014.