US Report Finds Flaws in Government Job Protections

In a report to Congress and the White House, an independent agency that guards the employment rights of federal workers said that current protections for LGBT federal employees are inadequate and called for legislation to remedy that.

“Any ambiguity in the longstanding policy prohibiting sexual orientation discrimination in the Federal workplace would be resolved by legislation making that prohibition explicit,” the authors at the Merit Systems Protection Board (MSPB) wrote in a May 7 letter that accompanied the report. “Such legislation could grant Federal employees who allege they are victims of sexual orientation discrimination access to the same remedies as those who allege discrimination on other bases.”

The federal government employs over two million civilian workers and the US Postal Service has another half million. The report is a surprisingly blunt look at how the government has moved from outright hostility toward LGBT employees dating from the mid-20th century to a warmer embrace of those workers today, but is still falling short.

Independent federal body says 1998 Clinton executive order, agency practice leave LGBT workers vulnerable

Up until 1975, the federal government considered sexual orientation in hiring and retention decisions, with LGBT people inevitably losing in these calculations. At times, the government attacked LGBT people. While the ‘50s are associated in popular culture and the mainstream press with communist witch hunts, that era was in fact a purge of LGBT federal employees, with an estimated 7,000 to 10,000 such workers losing their jobs.

In 1978, the MSPB replaced the US Civil Service Commission and adopted a series of prohibited personnel practices, among them a bar on considering “conduct which does not adversely affect the performance of the employee or applicant or the performance of others.” Two years later, this was interpreted to mean that sexual orientation was off limits in personnel matters.

In 1998, then President Bill Clinton signed an executive order that barred discrimination on the basis of sexual orientation in federal employment. That order did not “establish enforceable rights or remedies for employees who believed they had been discriminated against, such as the ability to proceed before the Equal Employment Opportunity Commission (EEOC). Those rights can only be granted through legislation,” the report said.

Underscoring the point, Clinton issued another executive order in 2000 that said the earlier order did not create any rights that were “enforceable in law or equity against the United States or its representatives.”

The consequence of this is that gay federal employees could complain to the Office of Special Counsel (OSC) if they believed they had experienced discrimination, but the ambiguity of that solution became apparent in 2004 when Scott Bloch, the head of the OSC during the administration of President George W. Bush, announced that he did not view sexual orientation as a protected class. Bloch’s announcement caused an uproar, and the White House put out a statement saying it opposed discrimination based on sexual orientation.

Some federal agencies have developed parallel equal employment opportunity mechanisms that employees can use when they believe that they have been discriminated against based on their sexual orientation, the report said.

Citing surveys from 2005, 2007, and 2010, the MSPB estimated that roughly one percent of federal employees reported “being personally denied a job or job benefit (or otherwise being discriminated against) due to their sexual orientation.”

In 2008, when Gay City News last looked at non-discrimination policies in the federal workplace, the informal data comparing the number of reported discrimination cases to the number of complaints made suggested that federal agencies were generally not telling employees that sexual orientation discrimination was barred.

That is less true today.

In a 2010 study, 81 percent of federal supervisors and 68 percent of non-supervisors agreed with the statement “My organization has made it clear that it prohibits discrimination based on a person’s sexual orientation.” The responses varied by federal agency, ranging from a low of 58 percent among both supervisory and non-supervisory employees to a high of 82 percent. The MSPB does not have data to compare this result to federal personnel’s knowledge of other prohibited grounds for discrimination, such as race or sex.

“If, however, survey results showed that about one-fifth of Federal supervisors (and over one-third of some agency workforces) did not agree that their organizations have made it clear that they prohibit discrimination on any other basis (sex, religion, or disability, for example), it would rightly raise concern,” the latest report said.

The authors noted that recent nominees to head the OSC and the federal Office of Personnel Management were asked during their confirmation hearings if they considered sexual orientation discrimination as a prohibited practice. That pointed out the obvious flaw in policy that can only be corrected with legislation.

“This practice illustrates the fundamental limitation of current policy — the existence and enforcement of protections against sexual orientation discrimination in Federal employment depend on interpretation,” they wrote.

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