Most people would be shocked to know that, until fairly recently, it was legal for a federal agency to fire an employee for being LGBT unless the employee could show that the agency discriminated on the basis of sexual stereotyping. Thankfully, the federal government has made tremendous strides, which is especially crucial given its role as a model employer for other employers nationwide.
The Equal Employment Opportunity Commission (EEOC) now interprets Title VII of the Civil Rights Act of 1964, which does not explicitly list sexual orientation or gender identity as protected (as it does for sex, race, national origin, color and religion), as prohibiting discrimination against federal employees on these bases. In FY 2015, the EEOC issued 20 federal sector decisions finding that sexual orientation and gender identity-related complaints can be brought under Title VII. For example, in Larita G. v. U.S. Postal Service, EEOC Appeal No. 0120142154 (Nov. 18, 2015), the EEOC reversed the agency’s dismissal of a sexual orientation based hostile work environment claim finding such an allegation is necessarily an allegation of sex discrimination under Title VII. In Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, (Mar. 27, 2015), the EEOC held that an agency’s restrictions on a transgender woman’s ability to use a female restroom and intentional misuse of a transgender employee’s new name and pronoun can constitute sex-based discrimination.
The EEOC has posted guidelines for federal employees who believe their agency is discriminating against them because of sexual orientation or gender identity to follow: http://www.eeoc.gov/federal/directives/lgbt_complaint_processing.cfm
The Office of Special Counsel (OSC) is an independent agency charged with protecting federal employees from prohibited personnel practices (PPPs), especially retaliation for whistleblowing. However, OSC has also determined that it is a PPP for an agency to discriminate against a federal employee or applicant based on sexual orientation or gender identity. This stems from 5 U.S.C. § 2302(b) (10), which prohibits discrimination based on “conduct” that does “not adversely affect job performance.” OSC has authority to investigate and prosecute PPP complaints alleging sexual orientation and gender identity discrimination, and may take several actions including:
• Seeking stays of personnel actions while investigations are pending (for example, where removal of the employee has been proposed);
• Obtaining full corrective action (including reinstatement or back pay);
• Seeking disciplinary action against alleged wrongdoers.
While there is no statute of limitations to file PPP complaints with OSC, it is better to act as soon as possible. OSC’s website also has information about the federal protections for LGBT workers here.
The Merit Systems Protection Board (MSPB) is an independent, adjudicative agency that hears, among other things, appeals of adverse actions taken against federal employees, such as removals, demotions, or suspensions of more than 14 days. The MSPB also hears cases brought by OSC concerning PPPs (see above). At the MSPB, a federal employee can assert what’s called an “affirmative defense” of discrimination against an adverse action. Given the EEOC’s recent holdings that Title VII prohibits discrimination on the basis of sexual orientation and gender identity, a federal employee subjected to an adverse action because of sexual orientation or gender identity can now successfully raise that as an affirmative defense against the adverse action. In other words, the MSPB can explicitly reverse any adverse actions taken by federal agencies to discriminate against LGBT federal employees.
The federal government’s steps to eliminate discrimination based on gender identity and sexual orientation against its own employees have effectively finally made discrimination on these bases illegal and actionable.
Debra D’Agostino is a founding partner of The Federal Practice Group Worldwide Service. She has more than a decade of experience in employment law. Stephen Lang contributed to this article.