On 4 June, four federal agencies released a guide documenting the rights and processes available to LGBT people seeking to allege discrimination on the basis of sexual orientation or gender identity.
The nine page report, ‘Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities’, reflects the major developments in protections since the previous edition was released over a decade ago. In some cases, this marks a radical change. The Obama administration has guaranteed the protection of LGBT civilian employees since 2014 – this is a particularly important development as the Federal Government is the nation’s largest employer.
It is very important to track the way that the report explains the new interpretation of Title VII of the Civil Rights Act of 1964, which states: ‘All personnel actions affecting employees or applicants for employment … [in the Federal Government] … shall be made free from any discrimination based on race, color [sic], religion, sex, or national origin.’
In recent years, the Equal Employment Opportunity Commission (EEOC) has ‘recognized that Title VII’s prohibition on sex discrimination provides protections for persons who have been discriminated against based on sexual orientation and gender identity.’
After offering a general guide to the phrasing of the law and the interpretations that include LGBT people, the guide lays out the ways in which employees can make a complaint. For example, in order to file under Title VII, a plaintiff has 45 days from the date of the alleged discrimination to notify an Equal Employment Opportunity (EEO) councillor to file an informal complaint.
If informal attempts at resolution are unsuccessful, the plaintiff has 15 days from notice of a right to file a formal complaint, which will set the wheels in motion for an investigation which must occur within 180 days. This then begins a legal process which can take several months to reach a conclusion.
While it might seem that this is an unnecessarily long process – and in some cases it might well be – this is the standard process for dealing with discrimination cases.
The guide also breaks down the specific procedures to file a complaint through a union or through a specific agency as ‘Many agencies have their own systems to resolve disputes between an employee and the agency that may not be available elsewhere’.
While the Federal Government recognizes the rights of its LGBT civilian personnel, there are still problems with uniform enforcement of non-discrimination regulations across all government branches. The military has openly discriminated against transgender members (and has also had problems dealing with discrimination on the basis of sex in the case of cisgender women). This has also been a problem in the case of military prisoners – the best-known case probably being that of Chelsea Manning.
All agencies have been instructed to ‘accept claims alleging sexual orientation or gender identity discrimination as claims of sex discrimination’, but it has yet to be seen if the cases will be treated with appropriate seriousness and sensitivity.
Reading the full report makes one last thing clear: lacking official recognition of sexual orientation and gender identity as protected classes makes dealing with this type of discrimination a much trickier area than it needs to be. While the federal government may consider these forms of discrimination to be illegal, without official recognition in nationwide legislation, many people are still left helpless when confronted with discrimination at work.
With the ruling on same-sex marriage last week, discriminatory treatment of LGBT people outside of wedding paraphernalia has entered the forefront of the discussion. There are currently only 22 states which prevent discrimination in employment on the basis of sexual orientation. Roughly the same number of states also passed laws prohibiting housing discrimination on the basis of sexual orientation, with some extending the same protections to gender identity.
The goal of policies like this is summed up in the Conclusion: ‘…of primary importance is creating an atmosphere of fairness to applicants and employees. They should be secure in the knowledge that the federal agency for which they work will not treat them differently or less favorably [sic] on account of sexual orientation, gender identity, or any other consideration unrelated to merit.
‘Through the equitable treatment of all applicants and employees, the Federal Government can set an example for the nation that we serve.’
The full text of the guide, developed by the Office of Personal Management, the Equal Employment Opportunity Commission, the Office of Special Counsel, and the Merit Systems Protection Board, may be accessed here.