- Can I be removed from the Federal service for merely being gay?
- Can I be disciplined or removed from the Federal service if I am arrested for
performing consensual Sodomy or violation of a similar statute?
- What about my supervisor denying promotions, transfers, training opportunities or
other actions based on my sexual orientation?
- How about harassment on the job?
- What avenues of redress do I have, if I feel I've been discriminated against?
1. Can I be removed from the Federal service for merely being gay?
No. In 1978, the Civil Service Law was changed and this is considered a "prohibited
personnel practice" . The law reads as follows:
5 U.S.C. §2302 (b)(10) "Any employee who has the authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority discriminate for or against any employee, or applicant for employment on the basis of conduct which does not adversely affect either the employee's own job performance or the performance of others."
AND:
In a policy statement released by Alan K. Campbell, then the Director of the Office of Personnel Management on May 12, 1980, OPM provided agency guidance in the form of a policy statement on what types of conduct this provision of Title V covers:
"The privacy and constitutional rights of applicants and employees are to be protected. Thus, applicants and employees are to be protected against inquiries into, or actions based upon, non-job-related conduct, such as religious, community or social affiliations, or sexual orientation. An applicant or employee is also to be protected against any infringement of due process, self-incrimination or other constitutional rights."
top
2. Can I be disciplined or removed from the Federal service if I am arrested for
performing consensual Sodomy or violation of a similar statute?
Generally, No. In order to be disciplined or fired for off-duty conduct, the Government must prove two points in its case:
1. That a nexus (or direct link) existed between the act in question and the
person's ability to perform their job; and
2. the disciplinary action would promote the efficiency of the service.
Private sexual conduct involving only consenting adults (including homosexual
conduct) has been found unrelated to the efficiency of the Federal service as far back as
1970. However, if on-duty misconduct is involved (such as soliciting other employees in
an agency restroom) there would probably be a nexus found under this situation. Also,
crimes such as murder, manslaughter, rape or other violent crimes have an implied nexus
due to their severity.
top
3. What about my supervisor denying promotions, transfers, training opportunities
or other actions based on my sexual orientation?
As mentioned in question 1 above, persons who have the authority to take or not take personnel actions may not discriminate based on sexual orientation. Civil Service law defines a personnel action as follows:
"an appointment; a promotion; an action under chapter 75 of this title (disciplinary actions) or other disciplinary or corrective action; a detail, transfer or reassignment; a reinstatement; a restoration; a reemployment; a performance evaluation under chapter 43 of this title; a decision concerning pay benefits, or awards, concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this sub-paragraph; and any other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level..."
top
4. How about harassment on the job?
This area is a bit more ambiguous. If you have told your supervisor about the harassment and the supervisor fails to take action then technically, he may have committed a prohibited personnel practice by failing to take a personnel action (disciplinary action) against someone who is harassing an employee who, in the eyes of the law, is doing nothing wrong. In many agencies (such as USDA) such harassment is covered by our guidelines on sexual harassment in the workplace. You may also file a grievance (see next question).
top
5. What avenues of redress do I have, if I feel I've been discriminated against?
Under Civil Service law, major actions such as a demotion, firing, suspension for more than 14 days, furlough for more than 30 days or withholding of a within-grade increase, such as removals and suspensions for more than 15 days are appealable to the Merit Systems Protection Board. The MSPB is a body similar to EEOC and was created by the Civil Service Reform Act of 1978 to act as the deciding body in these types of complaints. You may be most familiar with them from reading about whistle-blowers as protecting them is in their charter as well.
For other personnel actions, your existing redress rights depend on your agency. In USDA (and many other agencies) prohibited personnel practices are handled under the agency's administrative grievance procedure (AGP) for non-union employees or the negotiated grievance procedure (NGP) agreements with the unions representing USDA employees. All agencies are required to have an AGP. Supervisory employees can use the AGP.
There are other avenues of redress, depending on the agency. Some agencies use their established EEO complaints process at this level. Additionally, a local civil rights attorney I interviewed mentioned that he has had success filing complaints with the Inspector General offices in agencies as well.