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Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

Written Testimony of Leonard Hirsch
Federal GLOBE

Good afternoon. I am honored to be on this panel. My name is Leonard Hirsch. I come here due to my work in Federal GLOBE: Gay, Lesbian, Bisexual, Transgender Employees of the Federal Government. I am probably the outsider on this panel because I do not have the depth of experience and knowledge that my colleagues here have on the rules and procedures of the EEOC. I am the outsider, because were I the victim of discrimination, most likely, the EEOC would not be able to take my case.

Sexual orientation issues are currently the locus of much societal discourse, learning and change in all spheres of our lives. The “love which dare not say its name” now is loquacious. Whether it be TV anchors or hip hop singers coming out of the closet, or unfortunately, gay-bashing and violence against our transgender brothers and sisters, increasingly we are discussing this set of personal issues. And it is a complex of issues, not a single one.

Dealing with sexual orientation, gender identity, and gender expression IN THE WORKPLACE, is fraught. Does sexual orientation belong in the workplace? Many would say no, but in reality, these issues always have been part of the workplace. Now we are just dealing with them in the broader and fuller range: we are also hearing from people who were silenced and marginalized in the past.

  • Everytime there is a wedding shower at work, sexual orientation is there.
  • Discussions about weekend and vacation plans generally involve discussions of family, and sexual orientation is there.
  • Many of our likes and dislikes reflect sexual orientation.
  • Historically, dress codes enforced a narrow range of gender identities and expression, and informal codes still do.

Dealing with sexual orientation is necessary and needed. Discussing it is necessary and needed. Keeping up with society and ensuring the full extent of our rights as citizens demands it.

The issues of harassment and discrimination based on sexual orientation, gender identity and gender expression are similar to those involving race, age or gender. However, the rules for dealing with such harassment and/or discrimination are different.

The right to employment free of harassment on sexual orientation does not exist. When Congress passed the authorizing laws, sexual orientation was not enshrined as a protected class, as we all know. Protections from discrimination based on gender identity and expression are only being addressed now through the extension of case law on discrimination based on sex. This is an important advancement of the last few years and we thank the EEOC and its Commissioners and staff for working as hard as they have to help protect and assist transgender people and those who do not fit in traditional gender expressions.

However, this set of factors—some not fully protected by EEOC rules, and others in a state of flux, has created a situation where much more time and attention needs to be placed on training and outreach. We are happy to see that the EEOC Strategic Plan for Fiscal Years 2012-2016 has a full objective on Education and Outreach. And as good bureaucrats, when given a Strategic Plan, we have 3 operational requests for action as you implement the plan:

  1. Given that remedies for discrimination based on sexual orientation is not an EEOC mandate, we request that you formally engage the Office of the Special Counsel and the Merit Systems Protection Board, which do have purview on these cases, to jointly develop materials and programs under Outcome Goal II.B.

Over the 20 plus years of working with Federal GLOBE, we have noticed that training on sexual orientation, gender identity, and gender expression issues have changed for the better, but they are still not good enough nor consistent. Many trainers are not comfortable with the issues, not conversant beyond the book learning, and skim past the issues with formulaic articulations. Many EEO offices are not comfortable with these issues, and rather transfer them to human resources offices due to the lack of mandate.

  1. Training the trainers is very important. In all areas of discrimination and harassment, we have found that training can be most effective when they not only give the facts and procedures, but address some of the cultural and communication issues. We have found that for sexual orientation issues, it is frequently a negative cycle that starts with ignorance, rather than animus, that is at the heart of a hostile situation. How to encourage communication so that we can quickly eliminate this set of cases can be a manageable goal of this Plan.

In all spheres, discrimination has shades of grey which makes it difficult to fully assess. Clearly getting good data which enables identification of areas of concerns is vital. The US government has just started asking its employees to self report sexual orientation.

  1. Working with OPM to analyze this data and find areas of the government where there are signs of discrimination will be another element of the work of this Plan. We at Federal GLOBE and its affiliated agency groups offer our support and assistance in this work. Together, with other affinity groups, the Unions, management, and our colleagues, we can make the Federal workforce a model for all.

Thank you for your time and patience.