eople can still get fired in 29 states for their sexual orientation and in 32 states for their gender identity. The EEOC provides the following guidance on sexual orientation discrimination:
The EEOC enforces the prohibitions against employment discrimination in Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, Sections 501 and 505 of the Rehabilitation Act of 1973, Titles I and V of the Americans with Disabilities Act of 1990 (ADA), Title II of the Genetic Information Non-discrimination Act (GINA), and the Civil Rights Act of 1991. These laws prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information, as well as reprisal for protected activity. The Commission’s interpretations of these statutes apply to its adjudication and enforcement in federal sector as well as private sector and state and local government employment.
The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.
The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011), http://www.eeoc.gov/decisions/0520110649.txt.
Federal government employees may file claims of discrimination under the Part 1614 EEO process on any of the bases covered under the laws EEOC enforces, and/or may also utilize additional complaint procedures described below.
Civil Service Reform Act
The Civil Service Reform Act of 1978 (CSRA), as amended, also protects federal government applicants and employees from discrimination in personnel actions (see “Prohibited Personnel Practices” http://www.opm.gov/ovrsight/proidx.asp) based on race, color, sex, religion, national origin, age, disability, marital status, political affiliation, or on conduct which does not adversely affect the performance of the applicant or employee — which can include sexual orientation or transgender (gender identity) status. The Office of Special Counsel (OSC), www.osc.gov, and the Merit Systems Protection Board (MSPB), www.mspb.gov, enforce the prohibitions against federal employment discrimination codified in the CSRA. For more information, see OPM’s Addressing Sexual Orientation Discrimination in Federal Civilian Employment at http://www.opm.gov/er/address2/guide01.htm, OPM’s Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace at http://www.opm.gov/diversity/Transgender/Guidance.asp, and OSC’s Prohibited Personnel Practices and How to File a Complaint at http://www.osc.gov/ppp.htm.
Additionally, federal agencies retain procedures for making complaints of discrimination on any bases prohibited by Executive Orders reviewed below. For example, some lesbian, gay, and bisexual employees may file complaints under both the agency’s Executive Order complaint process (for sexual orientation discrimination) and 1614 process (for sex discrimination), as these are separate processes.
Executive Order 11478, section 1 (as amended by Executive Orders 13087 and 13152) provides:
“It is the policy of the government of the United States to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, sexual orientation or status as a parent, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the federal government.”
Executive Order 13152 states that “status as a parent” refers to the status of an individual who, with respect to an individual who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is: a biological parent, an adoptive parent, a foster parent, a stepparent, a custodian of a legal ward, in loco parentis over such individual, or actively seeking legal custody or adoption of such an individual. The Executive Order authorized OPM to develop guidance on the provisions of the Order.