In General

What is employment discrimination based on sexual orientation?

Employment discrimination based on sexual orientation is treating employees or applicants for employment differently from similarly-situated coworkers or applicants because of:

• their sexual orientation or perceived sexual orientation;

• their relationship with an individual(s) of a particular sexual orientation; or

• their affiliation with a group that is associated with sexual orientation issues or whose membership is composed mainly of people of a particular sexual orientation(s), including an employee organization.

Federal Government Policy

What is the Federal Government's policy on sexual orientation discrimination in federal employment?

It is the policy of the Federal Government to provide equal opportunity to all of its employees. Discrimination based upon sexual orientation is at odds with the merit system, which is the pillar of effective and honest government. As the Nation's largest employer, the Federal Government sets an example for other employers that employment discrimination based upon sexual orientation is not acceptable.

Executive Order 13087, issued on May 28, 1998, amended Executive Order 11478, Equal Employment Opportunity in the Federal Government, to include sexual orientation as a prohibited basis of discrimination. This reaffirmed the Executive Branch's longstanding internal policy that prohibits discrimination based upon sexual orientation within Executive Branch civilian employment. The Order is also in accord with the Office of Personnel Management (OPM) interpretation of the Civil Service Reform Act of 1978, a federal law that prohibits discrimination in certain employment decisions when the decisions are based upon conduct that does not adversely affect employee performance.

Executive Order 11478, as amended, reads, in part, as follows:

It is the policy of the Government of the United States to provide equal opportunity in federal employment for all persons to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, sexual orientation, or status as a parent , and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal employment opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government, to the extent permitted by law.

E.O. 11478, 34 F.R. 12985 (August 8, 1969).

Department of Commerce Policy

What is the Department's policy on sexual orientation discrimination?

Employment discrimination based on sexual orientation violates the Department of Commerce's nondiscrimination policy and it will not be tolerated. Retaliation for raising concerns of sexual orientation discrimination is also prohibited. This policy has been set forth in Department Administrative Order (DAO) 215-11.

Does the Department's nondiscrimination policy grant special rights to employees and applicants who are gay, lesbian, or bisexual?

No. Department policy prohibits discrimination based on sexual orientation against all employees and applicants. It also forbids discrimination based on race, color, religion, sex, national origin, age, disability, marital status, political affiliation, or status as a parent. Equal employment opportunity for every employee and applicant is the goal of this policy.

In practice, what does the Department's nondiscrimination policy mean?

The nondiscrimination policy simply means that:

• sexual orientation cannot be used as a basis for employment decisions;

• all employees must be treated equally without regard to sexual orientation;

• supervisors must ensure that their employees have a work environment that is free of harassment based on their sexual orientation. This includes jokes, comments, cartoons, or any derogatory behavior based on sexual orientation; and

• employees cannot be retaliated against because they raise concerns about sexual orientation discrimination.

What types of employment issues does the policy cover?

The nondiscrimination policy applies to all aspects of employment including hiring, promotion, termination and all other terms and conditions of employment. It also prohibits hostile environment harassment based on sexual orientation or in retaliation for raising concerns about sexual orientation discrimination. Hostile environment harassment occurs when actions taken because of an employee's sexual orientation (a) are intended to or do reasonably interfere with the employee's work performance or (b) create an intimidating, hostile, or offensive work environment.

The Law

What is the law regarding sexual orientation discrimination in federal employment?

At present, there is no federal civil rights law that explicitly prohibits discrimination based on sexual orientation in federal or private employment. While some state and local laws prohibit employment discrimination based on sexual orientation, these do not apply to federal employment even if your workplace is located in a state or locality with such a law.

However, sexual orientation discrimination in federal employment is a violation of the Civil Service Reform Act of 1978. This law describes prohibited personnel practices. One of them, contained in 5 U.S.C. § 2302(b)(10), prohibits any employee who has authority to take, direct others to take, recommend, or approve any personnel action from discriminating for or against any employee or applicant for employment on the basis of conduct that does not adversely affect the performance of the employee or applicant or the performance of others. OPM has interpreted this statute to prohibit discrimination based upon sexual orientation.

Managers' Responsibilities

What are the responsibilities of managers and supervisors with respect to sexual orientation discrimination?

Managers and supervisors must provide a work environment that is free from discrimination based on sexual orientation in accordance with Executive Order 11478, as amended. Managers and supervisors should encourage employees to report to any management official, normally their immediate supervisor, instances of discrimination.

When a manager or supervisor is aware of discrimination concerns, they should consult with their EEO Officer or agency legal counsel to ensure that appropriate steps are taken. The first step is to conduct a thorough investigation into the allegations of discrimination. All reports of incidents of sexual orientation discrimination should be taken seriously and addressed. In some circumstances, this may involve taking corrective steps or disciplining those who discriminate, as appropriate.