Processing Complaints Alleging Sexual Orientation or Gender Identity Discrimination by Federal Employees

29 C.F.R. Part 1614 Claims of Sex Discrimination by Federal Employees

Claims alleging gender-identity/transgender-status discrimination.  The U.S. Supreme Court has held that discrimination based on transgender status  violates the prohibition on workplace discrimination “because of . . . sex” in Title VII of the Civil Rights Act of 1964.  See Bostock v. Clayton County, 590 U.S. ---, 140 S. Ct. 1731 (2020). This is consistent with the EEOC's previous position in Macy v. Department of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C.) (April 20, 2012) that discrimination against an individual because that person is transgender is discrimination because of sex.  See also Jameson v. U.S. Postal Serv., EEOC Appeal No. 0120130992, 2013 WL 2368729 (E.E.O.C.) (May 20, 2013) (intentional and repeated misuse of a transgender employee's name and pronoun is severe or pervasive harassment sufficient to constitute a claim of a sex based hostile work environment); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (E.E.O.C.) (Apr. 16, 2014) (The Agency's refusal to change a transgender employee's records to reflect his new name and gender for over a year, coupled with an Information Security Officer's hostility towards him because of the change in his gender identity from female to male, was severe or pervasive enough to constitute a claim of sex based harassment).

Complaints of discrimination on the basis of gender identity/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 unless the complainant specifically requests to use a different applicable complaint process after being advised by the Agency that gender-identity/transgender-status discrimination claims are ordinarily processed under Part 1614.

Claims alleging sexual-orientation discrimination.  The U.S. Supreme Court has held that discrimination based on sexual orientation violates Title VII’s prohibition on discrimination “because of . . . sex.” Bostock v. Clayton County, 590 U.S. ---, 140 S. Ct. 1731 (2020). This is consistent with the EEOC's previous position in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) that discrimination on the basis of a person's sexual orientation is discrimination because of sex. See also Bart M. v. Dep't of Interior (Bureau of Land Mgmt.), EEOC Appeal No. 0120160543, 2021 WL 308612 (Jan. 14, 2021) (decision by the Commission applying Bostock to find the agency discriminated against complainant on the basis of sexual orientation when it did not select him for a supervisory position).

Complaints of discrimination on the basis of sexual orientation 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, unless the complainant specifically requests to use a different applicable complaint process after being advised by the Agency that sexual-orientation discrimination claims are ordinarily processed under Part 1614 and of the varying remedies available under Title VII and potentially applicable federal regulation and policy.

Other Federal Processes for Addressing Discrimination Based on Sexual Orientation or Gender Identity

Office of Special Counsel. Employees also may file complaints of sexual orientation and gender identity discrimination with the U.S. Office of Special Counsel (OSC), which receives and investigates allegations of prohibited personnel practices under the Civil Service Reform Act of 1978. See, e.g., 5 U.S.C. §§ 2302(b)(1), (b)(10).  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/services/pages/ppp-filecomplaint.aspx

Agency-specific Processes. A possible area of redress for those who believe they have been discriminated against based on their sexual orientation or gender identity is the availability of any agency-specific procedures implemented to redress such discrimination. Many agencies have their own systems to resolve disputes between an employee and the agency that may not be available elsewhere. In general, these systems try to achieve an informal resolution so that disputes do not have to be decided by higher levels of management. Specific procedures and time limitations vary by agency. An employee considering such procedures must become familiar with the rules governing the particular agency’s system. Employees who believe that they have been discriminated against due to their sexual orientation or gender identity should ask their human resource office for a copy of any applicable agency procedures to determine the procedures to follow and subjects they cover. See Executive Order 11478, section 1 (as amended by Executive Orders 13087 and 13672).