A recent Merit Systems Protection Board (MSPB) report claims that anti-discrimination policies covering sexual orientation aren’t being uniformly interpreted by agencies. According to MSPB, legislation is needed to get everyone on the same page.
The Office of Personnel Management (OPM) has interpreted the tenth Prohibited Personnel Practice to prohibit sexual orientation discrimination since 1980. This practice prevents discrimination in federal personnel actions based on conduct that does not affect job performance.
However, the prohibition has not been outlawed in statute or in a judicial decision, subjecting it to alternate interpretations, according to MSPB.
Executive Order 13087 prohibits sexual orientation discrimination in federal government. However, the order does not specify any way to enforce rights or remedies for alleged victims of discrimination.
Both the OPM rule and the executive order need to be cleared of ambiguity. According to the report, legislation explicitly prohibiting sexual orientation would resolve the issue.
As MSPB puts it:
“Such legislation could grant federal employees who allege they are victims of sexual orientation discrimination access to the same remedies as those who allege discrimination on other bases.”
Brief History of Sexual Discrimination in the Federal Workplace
Before 1975, government policy took sexual orientation into account when determining suitability for federal employment. It is unclear how many people were denied employment or who had their employment terminated based on sexual orientation, not to mention how many may not have sought federal employment for fear of discrimination.
In 1978, the tenth Prohibited Personnel Practice (PPP) barred discrimination in federal personnel actions based on conduct that does not adversely affect job performance. However, the prohibition wasn’t interpreted (by OPM) as barring sexual orientation discrimination until 1980.
Then, in 1998, an executive order was signed, affirming the policy of non-discrimination based on sexual orientation in federal employment. Since it was only a statement of policy, the order provided no enforceable rights for alleged victims of discrimination.
Sexual Orientation Discrimination Today
In 2012, OPM’s annual Federal Employee Viewpoint Survey (FEVS) asked employees to self-identify their sexual orientation for the first time. The resulting data set showed that LGBT employees are represented in the supervisory, managerial, and executive ranks in the same proportion as they are in the overall federal workforce.
But what are the perceptions of sexual orientation discrimination among federal employees as a whole? A 2010 MSPB survey showed that three percent of respondents reported that sexual orientation discrimination had occurred in their workplace. Roughly the same percentage of employees had also perceived other PPPs had occurred including discrimination based on marital status and national origin. And an additional one percent of respondents reported being the direct target of sexual orientation discrimination.
On the other hand, the survey found that 81 percent of supervisory respondents and 68 percent of non-supervisory respondents agreed that their organizations have clearly communicated that they prohibit discrimination based on sexual orientation.
While the federal workplace has become less tolerant of sexual orientation discrimination, there is still plenty of room for improvement. Clearing away the ambiguity in the regulatory environment would be a positive next step in preventing this type of discrimination in our federal organizations. If you believe you have been discriminated against for any reason, please reach out to our knowledgeable federal employee attorneys at Snider & Associates, LLC.