Claims by transgender individuals. The EEOC's decision in Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012); 2012 WL 1435995 (E.E.O.C.) represents the Commission's position that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex.
Complaints of discrimination on the basis of transgender status should be processed under Title VII of the Civil Rights Act of 1964 and through the federal sector EEO complaint process at 29 C.F.R. Part 1614 as claims of sex discrimination.
Claims by lesbian, gay, and bisexual individuals. Lesbian, gay and bisexual individuals may also experience sex discrimination, including sexual harassment or other kinds of sex discrimination. See, e.g., Brooker v. U.S. Postal Service, EEOC Request No. 0520110680 (May 20, 2013) (an ongoing pattern of comments and rumors referring to a complainant as being gay can be severe or pervasive enough to rise to the level of sexual harassment). Sex discrimination includes adverse actions taken because of a person's failure to conform to sex-stereotypes. See, e.g., Rosa v. Department of Veterans Affairs, EEOC Appeal No. 0120091318, 2009 WL 2513955 (E.E.O.C.) (August 3, 2009) (harassment against a male employee including repeated innuendos about his sexuality and verbal mocking using "very feminine voices" can constitute discrimination based on sex); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873, 2011 WL 2663401 (E.E.O.C.) (July 1, 2011) (discrimination based on sex-stereotype that men should only marry women can constitute discrimination based on sex); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (December 20, 2011); 2011 WL 6960810 (E.E.O.C.) (discrimination based on sex-stereotype that women should only have sexual relationships with men can constitute discrimination based on sex); Baker v. Social Security Administration, EEOC Appeal No. 0120110008, 2013 WL 1182258 (E.E.O.C.) (Jan. 11, 2013) (Complainant's allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on his gender non-conforming behavior, and the fact that a Complainant characterized the basis of discrimination as sexual orientation does not defeat an otherwise valid sex discrimination claim); Culp v. Dep't of Homeland Security, EEOC Appeal No. 0720130012, 2013 WL 2146756 (E.E.O.C.) (May 7, 2013) (allegation of sexual orientation discrimination was a claim of sex discrimination because supervisor was motivated by his attitudes about sex stereotypes that women should only have relationships with men).
In accordance with EEO Pre-Complaint Processing Procedures set forth in MD 110 Chapter 2, EEO Counselors should assist individuals in clearly defining their claims. Lesbian, gay and bisexual employees who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a complaint under the 1614 process, because they may have experienced sex discrimination, as described above.
Appeals to the Commission. If a lesbian, gay, or bisexual employee files a complaint under the 1614 process and the agency rejects the complaint as failing to state a claim of sex discrimination, the agency should ensure that it provides the employee with the appropriate notice of right to appeal as set forth in EEOC's regulations (29 CFR 1614.401) and MD 110.
Executive Order 13087. Executive Order 13087 explicitly prohibits discrimination based on sexual orientation. As such, federal agencies should retain procedures that permit employees to file complaints of sexual orientation discrimination under the Executive Order. Where a lesbian, gay, or bisexual employee files a complaint under the 1614 process for sex discrimination, the complaint may be dual filed under both the 1614 and EO processes. Of course, if a complainant wants to file his or her complaint solely under the Executive Order or solely under the 1614 process, the individual is free to do so.
Office of Special Counsel. Employees may also file complaints of sexual orientation and gender identity discrimination with the Office of Special Counsel (OSC), which receives and investigates allegations of prohibited personnel practices under Title V of the Civil Service Act. OSC has taken the position that allegations of discrimination based on sexual orientation and gender identity may constitute prohibited personnel actions and therefore will accept and investigate complaints of sexual orientation and gender identity discrimination filed by federal employees. More information about how to file a prohibited personnel practice complaint with OSC can be found at: http://www.osc.gov/ppp.htm