Thursday, July 24, 2014

How do you solve a Problem like …

Andrew Lloyd Weber was on the hunt to cast a Maria for a production of “Sound of Music” some years ago and ran the audition process via a reality show on ITV. It was a nice hybrid of singing competition and motivational work to find the right person. Adapting and shifting approaches is all part of the process. I’ve spent a good chunk of my professional life fixing things. For many years I came into organizations – for profit, not-for-profit, hybrids in-between – and worked with stakeholders to find solutions. I’d do a big fix and then I’d come back every few months to do a check-in/tune-up. It was a good business model for both of us. Something always needed tweaking. Situations are not stagnant -  they change. This basic tenant of life seems to be missing in the thinking at the White House these days.

President Obama continued his spate of Executive actions this week issuing #11246 that that prevents any business that contracts with the U.S. government to discriminate based on sexual orientation. It applies to all contracts starting October 23, 2014 and beyond. It is not retroactive nor does is apply to existing contractors.


Progressives and many LGBT leaders have hailed this action as long overdue. Conservatives froth at the Imperial Presidency. The President has been taking action because, he says, the Congress won’t act. They’re all right – and they’re all wrong.

Congress is deadlocked – a reflection of the country. To move beyond the stalemate the President has the right to issue proclamations and directives, and his critics have the right to claim he’s trying to legislate around him.

All but one President has issued an Executive Order and President Obama is not a volume user. He’s at 182 while his predecessor had issued 291, and Bill Clinton 364. Not surprisingly FDR issued the most ever during his reign of government reinvention: 3,522.

ENDA, the Employment Nondiscrimination Act, has been introduced in one form or another since 1974 and has never become law. The resistance can be attributed to everything from homophobia to concerns about finding an exemption for religious organizations. Various accommodations were never agreed to and the bill stalls. Now a small portion of future federal contracts will have the protection for LGBT individuals seeking work with those companies. It’s a miniscule number. The PR and the illusion of the order implies a much more broad-based impact – so many businesses may just opt to update their hiring practices – that’s the hope at least. Complacency could kick in and activist groups might just rest on having won the PR battle, not the legislative war.



The real problem comes after President Obama is out of office. If President Cruz, or President Christie or President Conservative come into office – they’ll rescind the order. (There’s precedent as President George W Bush (43) rescinded several orders related to labor that Clinton had issued, and Clinton rescinded those of Bush (41), and so on.)

If you are a LGBT person seeking stability in your work environment, protection should not come at the discretion of who’s in the Oval Office. Employment issues must be consistent and across the board. It's the underlying premise of the civil rights movement: basic fairness. It’s been 40 years and LGBT people can still be fired for whom they love. It’s appalling and the President deserves credit for trying to change it. You don’t, however, solve a problem like this by executive order (a "special" carve-out). You solve it by working with Congress and changing the law for everybody.

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