Whistleblower Law Blog

Multi-Agency Guide Updates LGBT Discrimination Protections for Federal Workers

On June 3, 2015, four U.S. Government agencies released a guide on rights and protections afforded to federal employees and applicants who allege sexual orientation or gender identity discrimination. The guide reflects a growing body of case law that supports the proposition that Title VII of the Civil Rights Act of 1964 and other statutes offer substantial protections for lesbian, bisexual, gay, and transgender (LBGT) employees.

The U.S. Office of Personnel Management (OPM), the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Office of Special Counsel (OSC), and the U.S. Merit Systems Protection Board (MSPB) collaborated on the guide, titled “Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities.” The guide provides federal workers with a description of employee rights and agency responsibilities under Title VII, the Civil Service Reform Act of 1978, and other agency and union procedures.

The guide cites Executive Order 11478 (as amended), which forbids sexual orientation and gender identity discrimination in executive branch civilian employment. It defines sexual orientation as “one’s emotional or physical attraction to the same and/or opposite sex,” and gender identity as “one’s inner sense of one’s own gender, which may or may not match the sex assigned at birth.”

The decisions of the collaborating agencies reflect the protected status of sexual orientation and gender identity. On August 28, 2014, the OSC found that an agency had engaged in a prohibited personnel practice as defined under 5 U.S.C. 2302(b)(10) (discrimination based on conduct not adverse to work performance), and that the agency likely engaged in a prohibited personnel practice, as defined under 5 U.S.C. 2302(b)(1) (discrimination based on sex), when it subjected an employee who had transitioned from a man to a woman to gender identity discrimination. In its report, the OSC cited the EEOC’s decision in Macy v. Holder, EEOC Appeal No. 0120120821 (April, 20, 2012), which held that gender identity discrimination is unlawful sex discrimination.

The EEOC has issued several other decisions in recent years holding that LGBT individuals may bring valid Equal Employment Opportunity claims in the federal sector. One such case was Complainant v. Department of Homeland Security, EEOC Appeal No. 0120110576 (Aug. 20, 2014), which reaffirmed that sexual orientation discrimination based on gender stereotypes is unlawful sex discrimination.

These decisions are recent and observers will have to see how decisions coming out of the administrative adjudicatory bodies develop. However, to the extent this guide is any indication, LGBT employees and applicants for jobs should expect growing legal protections.


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