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Federal Employees News Digest : June 24, 2013
June 24, 2013 Vol. 62, No. 47 6 Visit us on the Internet at www.FederalDaily.com Despite internal policies, sexual orientation discrimination persists E arlier this spring, lawmakers in the House and Senate reintro- duced the Employment Non-Discrimination Act (ENDA). This legislation, which would prohibit employment discrimination on the basis of sexual orientation or gender identity, had been intro- duced in Congress numerous times, but last April's introduction was a little different. For starters, the bill has a new House sponsor, Rep. Jared Polis (D-Colo.). Add to that the Obama administration's assertion that getting ENDA passed is a priority. Although President Bill Clinton prohibited sexual orientation discrimination in the federal government through Executive Order 13087 in 1998, the need for ENDA's protections are still direly need- ed. The Office of Personnel Management's latest Federal Employee Viewpoint Survey revealed that 2.2 percent of federal employees identified themselves as lesbian, gay, bisexual or transgender, though an additional 10.8 percent of employees surveyed preferred not to disclose their sexual orientation. Right now, federal agencies have procedures under which employ- ees can internally complain about sexual orientation discrimination. Nevertheless, the federal government's policy against sexual orienta- tion discrimination is basically a toothless measure. Similar to other anti-discrimination laws, employees who believe they have been subjected to sexual orientation discrimination have 45 days after the alleged discriminatory action happened to contact an equal employment opportunity counselor. However, as the Equal Employment Opportunity Commission's procedures state, EEO counselors are supposed to inform the employee that, pursuant to federal EEO statutory procedures, employees under these internal procedures are "not entitled to a hearing or appeal and remedies are more limited." If, after an investigation, the agency rules against the employee, which is often the case, he or she is usually out of luck. However, employees who are lesbian, gay, bisexual or transgender may go to an EEO counselor with a sex or gender stereotyping complaint within 45 days of the discriminatory event. Unlike sexual orienta- tion discrimination, gender and sex discrimination are covered by Title VII of the Civil Rights Act. Differentiating gender discrimination from sexual orientation discrimination boils down to semantics and gender stereotypes. An employee needs to ask: Did the harassing comments made to him or her speak to the commentator's belief that the employee liked other men or women---a sexual orientation issue? If not, did the harassing comments made to him or her speak to the commentator's belief that the employee was not or was too masculine or feminine a gender stereotyping issue? Did the commentator use words such as "manly" or "girlie" or "queer"? The EEOC case Shay A. Hitchcock v. Department of Homeland Security (2007), for example, involved a Transportation Security Administration supervisor who filed a formal EEO complaint alleg- ing he was forced to resign and subjected to a hostile work environ- ment because of his sex. Initially, an administrative judge dismissed the claims, saying they were based on sexual orientation discrimi- nation, placing the case outside the jurisdiction of the EEOC. The sexual harassment claim, in part, stemmed from the comments of co-workers, who said, the supervisor did "women's work," as well as, "why are you doing such feminine work? You would make someone a good wife one day." Others said, "a real man does not . . . ask opin- ions, he just does it." An assistant federal security director (AFSD) also allegedly called the employee a "faggot" and a "queer." However, the EEOC found that "[m]erely because these derogatory terms refer to sexual orien- tation does not automatically require that the ASFD was motivated by complainant's alleged sexual orientation." The commission said "the record clearly reflects that complainant believed that he was being discriminated against because of his failure to conform to gender stereotypes." As such, it reversed the administrative judge's decision and remanded the matter to the agency. Recently, however, the EEOC has broadened Title VII's prohibi- tion of discrimination "on the basis of . . . sex" to apply to situations where a federal employee faces discrimination for having relation- ships with members of the same sex. In Cecile E. Castello v. U.S. Postal Service (2011), the EEOC found that the employee stated a claim of sex stereotyping where she claimed that her supervisor "was motivated by the sexual stereotype that having relationships with men is an essential part of being a woman, and made a negative comment based on [the employee's] failure to adhere to this stereo- type." Similarly, in Jason E. Veretto v. U.S. Postal Service, the EEOC held that the employee stated a claim of harassment based on sexual stereotyping when he alleged that his supervisor became enraged that he announced his marriage to a man in the society pages, as doing so did not conform to the supervisor's "attitudes about stereo- typical gender roles in marriage." Federal employees who believe they have been subjected to sexual harassment or gender discrimination should immediately contact a federal employment law attorney. By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at firstname.lastname@example.org. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
June 17, 2013
July 1, 2013