EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII/GINA: Agency Discrimination Complaint Form
October 28, 2014
TRANSMITTED VIA E-MAIL
Mail Code JF000
National Aeronautics and Space Administration
Washington, DC 20546-0001
Re: 79 Fed. Reg. 51,362, National Aeronautics and Space Administration, Notice of Information Collection, NASA Complaint of Discrimination Form
Dear Ms. Teel:
The U.S. Equal Employment Opportunity Commission (EEOC) submits this comment in response to the National Aeronautics and Space Administration’s (NASA’s) request for comments on NASA’s Complaint of Discrimination Form.(1) EEOC offers these comments as the agency responsible for enforcing the federal laws that prohibit employment discrimination on the basis of race, color, religion, sex, national origin, age, disability, and genetic information.(2) The laws enforced by EEOC also prohibit retaliation for filing a charge or complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.(3)
As indicated below in greater detail, we suggest that NASA review and revise its Complaint of Discrimination Form and accompanying Instruction page to ensure consistency with federal employment discrimination law. We also suggest that NASA consider revising the form to clarify or further explain two prohibited forms of discrimination. Finally, we note two minor typographical errors.
Discrimination Complaints Based on Sexual Orientation or Gender Identity
The Instruction page states that EEOC “does not enforce the protections that prohibit [sexual orientation or gender identity] discrimination.”(4) Consequently, according to the form, “you are not entitled to a hearing before EEOC for a complaint alleging discrimination on one or both of these bases.”(5)
In 2012, EEOC clarified that gender identity discrimination was a form of sex discrimination and, therefore, was covered by Title VII.(6) Further, discrimination based on actual or perceived sexual orientation and/or gender identity may be cognizable as sex discrimination under Title VII.(7) Accordingly, we ask that NASA review and revise the Instruction page to ensure consistency with relevant legal precedent.
Clarification of Protected Forms of Sex and Genetic Information Discrimination
The Complaint of Discrimination Form specifies a variety of protected forms of sex discrimination, including sexual harassment, sex stereotyping, sexual orientation discrimination, and gender identity discrimination.(8) In addition to these types of discrimination, sex discrimination also includes pregnancy discrimination. As a result, we recommend that NASA add pregnancy to: (1) the list of protected characteristics at the top of the Complaint Form; (2) Question 6; (3) Question 7 (perhaps in the parenthetical with sexual harassment); and (4) the list of protected characteristics in the first paragraph on the Instruction page.
Pursuant to Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), the Complaint of Discrimination Form includes genetic information as a protected characteristic. We have learned that many individuals are unaware that genetic information includes family medical history. As a result, we have revised our outreach and education material (and have suggested that stakeholders make similar efforts) to ensure that applicants, employees, agencies, employers, and members of the public understand the forms of genetic information that are protected by GINA. Consistent with this approach, we recommend that NASA add “(including family medical history)” after “genetic information” in: (1) the list of protected characteristics at the top of the Complaint Form; (2) Question 6; (3) Question 7; and (4) the first paragraph on the Instruction page.
Minor Typographical Suggestions
We recommend that NASA replace “Oty” with “City” in Question 1. In addition, we recommend that NASA delete the question mark at the end of Question 6.
Thank you for the opportunity to comment on NASA’s Complaint of Discrimination Form. Should you wish to discuss these comments, please feel free to contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579 or Senior Attorney Advisor Lisa Schnall at (202) 663-4845.
Peggy R. Mastroianni
1 National Aeronautics and Space Administration, Notice of Information Collection, 79 Fed. Reg. 51,362 (August 28, 2014).
2 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff.
3 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); 29 U.S.C. § 791(g) (incorporating, among other provisions, the anti-retaliation provision of the Americans with Disabilities Act of 1990, as amended, into the Rehabilitation Act of 1973, as amended); 29 U.S.C. § 215(a)(3); 42 U.S.C. § 2000ff-6(f).
4 See NASA, Complaint of Discrimination 2 (second paragraph).
6 Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012). See also EEOC, Sex-Based Discrimination, http://www.eeoc.gov/laws/types/sex.cfm (last visited Oct. 15, 2014) (“Discrimination against an individual because that person is transgender is discrimination because of sex in violation of Title VII. This is also known as gender identity discrimination.”).
7 See, e.g., Complainant v. Department of Homeland Security, EEOC Appeal No. 0120110576, 2014 WL 4407422, at *7 (Aug. 20, 2014) (explaining that “[w]hile Title VII’s prohibition of discrimination does not explicitly include sexual orientation as a basis, Title VII prohibits sex discrimination, including sex-stereotyping discrimination and gender discrimination” and “sex discrimination claims may intersect with claims of sexual orientation discrimination,” citing, among other cases, Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (holding discrimination based on sex stereotyping actionable under Title VII)). See also EEOC, Sex-Based Discrimination, http://www.eeoc.gov/laws/types/sex.cfm (last visited Oct. 15, 2014) (“[L]esbian, gay, and bisexual individuals may bring sex discrimination claims. These may include, for example, allegations of sexual harassment or other kinds of sex discrimination, such as adverse actions taken because of the person’s non-conformance with sex-stereotypes.”).
8 See, e.g., NASA, Complaint of Discrimination 1 (Question 6).
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