Since 1980, civil service laws such as the Civil Service Reform Act of 1978 and Title VII of the Civil Rights Act of 1964 have been interpreted to prohibit discrimination on the basis of sexual orientation. Also, the Office of Personnel Management has interpreted the 10th Prohibited Personnel Practice (codified at 5 U.S.C. § 2302(b)(10)), which bans personnel actions based on conduct that does not adversely affect job performance, to prohibit sexual orientation discrimination.
However, in a May 2014 report to the president and Congress, the Merit Systems Protection Board wrote that, despite the existence of Executive Order 11478, which expressly prohibits discrimination based on sexual orientation and gender identity within executive branch civilian employment, confusion remains as to the law surrounding such discrimination.
In October 2014, the Office of Special Counsel (OSC) obtained corrective action for a transgender federal employee after concluding that the employee was unlawfully harassed by agency officials in violation of 5 U.S.C § 2302(b)(10).
The Equal Employment Opportunity Commission has likewise issued a number of decisions in the last several years, finding that discrimination based on either gender identity or sexual orientation is unlawful sex discrimination.
On June 3, 2015, against this backdrop, these four federal agencies released a joint guide entitled “Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment.”
The guide outlines the various administrative and legal protections available “to federal workers who believe they have been discriminated against because of their sexual orientation or gender identity,” both of which the guide defines. It also details steps for filing complaints, the MSPB appeals process, and other grievance procedures.
The guide defines sexual orientation as “one’s emotional or physical attraction to the same and/or opposite sex” and defines gender identity as “one’s inner sense of one’s own gender, which may or may not match the sex assigned at birth.” The guide’s definition of gender identity goes on to read “Different people choose to express their gender identity differently. For some, gender may be expressed through, for example, dress, grooming, mannerisms, speech patterns, and social interactions. Gender expression usually ranges between masculine and feminine, and some transgender people express their gender consistent with how they identify internally, rather than in accordance with the sex they were assigned at birth.”
After detailing the steps required to file either a Title VII EEO sex discrimination complaint or a prohibited personnel practice complaint with OSC, as well as what to expect from the process, the guide provides an overview of the MSPB appeal process in matters that involve appeals of certain agency personnel actions or complaints brought by OSC involving prohibited personnel practices. The guide also advises employees that they may contact their union to file a grievance under the negotiated grievance procedures, which, unless specifically excluding allegations of prohibited personnel practices, may allege that a prohibited personnel practice was committed relating to sexual orientation or gender identity discrimination.
Recently-resigned OPM Director Katherine Archuleta stated in a joint press release that “[o]ne of my highest priorities as director of OPM is to make sure we are recruiting and supporting top talent that draws from the rich diversity of the American people. We need all of our employees to be focused on making the most of their skills and their ingenuity, rather than worrying about losing their job or not getting promoted due to discrimination.”
EEOC Chair Jenny Yang noted her belief that the reissuance of the guide on LGBT discrimination protection was “critical given the developments that have occurred in this area over the last [10] years,” and that the guide “illustrates, in plain terms, the breadth of protections available to victims of LGBT discrimination in federal employment.”
Special Counsel Carolyn Lerner pointed to OSC’s recent enforcement activity in regard to LGBT-related discrimination as an indication of how such discrimination violates the letter of civil service laws and “the spirit of merit system principles.”
And from the MSPB, Chairman Susan Tsui Grundmann, who issued the May 2014 report suggesting that “ambiguity” in laws related to sexual orientation and gender identity discrimination could be resolved through legislation, stated, “Since the MSPB’s mission is to safeguard, protect and promote the merit principles … we support this guide as a helpful tool that will better educate and inform the federal workforce and applications about the full range of options under current law.”
A rather historic moment in anti-discrimination and merit system law.
Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your questions to lawyer@federaltimes.com.
