The EEOC has issued new guidance to federal EEO offices on processing complaints of discrimination by lesbian, gay, bisexual, and transgender employees. In the EEOC’s recent decision, Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the Commission held that discrimination against an individual because that person is transgender is discrimination because of sex. Therefore, the Commission advises federal agencies that “[c]omplaints 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.”
With respect to EEO Counseling, the Commission states: “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.”
The Commission also observed that Executive Order 13087 explicitly prohibits discrimination based on sexual orientation; therefore, federal agencies are instructed to maintain procedures permitting federal employees to file complaints of sexual orientation discrimination under the Executive Order.
In addition, employees can file complaints of sexual orientation and gender identity discrimination with the Office of Special Counsel (OSC) as these may constitute prohibited personnel practices over which the OSC has jurisdiction.
Kudos to the EEOC for providing guidance to federal EEO offices on how to properly process these types of claims. Kalijarvi, Chuzi, Newman & Fitch can help you if you need assistance in the EEO process.