Department of the Treasury
Washington, DC 20220

August 1, 1997

Memorandum for:   BUREAU COUNSEL, BUREAU EEO OFFICERS AND DIRECTORS, REGIONAL COMPLAINT CENTERS

From:  Miriam G. Harvey, Acting Director, Office of Equal Opportunity Program

Subject:   Processing Complaints of Sexual Orientation Discrimination

On June 2, 1995, Secretary Rubin announced to all employees the Department of the Treasury Rules of Conduct, 31 C.F.R.§0.214(a) which states in part:

Employees shall not discriminate against or harass any other employee, applicant for employment, or person dealing with the Department on official business on the basis or race, color, religion, national origin, sex, sexual orientation, age or disability. (Emphasis supplied).

Although sexual orientation discrimination is a violation of the Employee Rules of Conduct (and may be a prohibited personnel practice), the Department has decided to process allegations of sexual orientation discrimination through the Department's EEO structure.

In November 1995, and February 1996, OEOP distributed draft procedures for the handling of complaints of discrimination based on sexual orientation. We received a variety of comments. After consideration of all the comments, the Department is implementing the attached procedures to process complaints of discrimination on the basis of sexual orientation. The procedures supplement--but do not replace--the Equal Employment Opportunity Commission procedures for allegations of discrimination and the Merit Systems Protection Board procedures for the appeal of adverse personnel actions. These procedures provide for a formal investigation, a final agency decision, and when appropriate, "make whole" relief.

The differences between the EEO complaint procedure in 29 C.F.R. Part 1614 and the Department's procedures for handling claims of sexual orientation discrimination are few but significant:

1) No hearing. Under the Department's modified complaint procedure, there is no hearing. Investigators are authorized to obtain statements from individual and documents, just as they now do when investigating other discrimination complaints. Under 29 D.F.R. Part 1614, a Complainant is entitled to a hearing before an EEOC administrative Judge. EEOC Administrative Judges are not authorized to conduct hearings on complaints of sexual orientation discrimination, because sexual orientation is not recognized as a basis of prohibited discrimination in the civil rights statutes enforced by the EEOC.

2) No further appeal. There is no right of appeal from an OEOP final agency decision on a claim of sexual orientation discrimination. Under 29 C.F.R. Part 1614, a Complainant may appeal a final agency decision to the EEOC.

3) Limited remedies. An employee may be afforded "make whole" relief when OEOP finds sexual orientation discrimination, but compensatory damages are not available and attorney's fees are only available if an employees suffers a diminution of pay because of prohibited sexual orientation discrimination.

When a Complainant alleges discrimination on the basis of sexual orientation and another basis that would be processed under 29 C.F.R. Part 1614, the investigation shall include all allegations of discrimination if the pertinent facts and dates make it economical to do so. A Complainant has the right to pro a hearing or to appeal a final agency decision only on the bases covered by Title VII, the Rehabilitation Act, or the Age Discrimination in Employment Act.

This policy is effective immediately. The provisions of this policy will be incorporated into the Counselor's Handbook and the Complaint Processing Handbook, as appropriate. You should take appropriate steps to inform your employees of these procedures, and give this policy the widest possible distribution. The attached individual complaint form may be reproduced and distributed. Additional copies will be forwarded to you shortly. Thank you for your cooperation.

Tab 1 Treasury Department procedure for complaints alleging discrimination on the basis of sexual orientation.

Tab 2 Sexual Orientation Complaint Form (TDF 62-03.5A)

Treasury Department Procedures for Complaints Alleging Discrimination on the Basis of Sexual Orientation

A. DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION IS PROHIBITED

Discrimination based on sexual orientation is prohibited by the Department's nondiscrimination policy in the Treasury Department Employee Rules of Conduct.

Employees shall not discriminate against or harass any other employee, applicant for employment, or person dealing with the Department on official business on the basis or race, color, religion, national origin, sex, sexual orientation, age or disability.

31 C.F.R. §0.214 (1996). Secretary Rubin announced the Department's rule on June 2, 1995. This rule does not give individuals any additional rights under federal law or regulation. Id. Discrimination on the basis of sexual orientation is prohibited by the Employee Rules of Conduct and not by nondiscrimination statutes such as Title VII of the Civil Rights Act of 1964. Nevertheless, allegations of sexual orientation discrimination are sufficiently similar to complaints about other forms of discrimination that the EEO personnel and procedures are best able to address these complaints. Therefore, the Department of the treasury's Office of Equal Opportunity Program ("OEOP") will provide a process for addressing complaints of discrimination on the basis of sexual orientation.

A.1.

Sexual Orientation Defined

The term "sexual orientation" means homosexuality, bisexuality, or heterosexuality, whether the orientation is real or perceived.

B. PROCEDURES AVAILABLE

1. An individual who believes that he or she has been discriminated against because of sexual orientation (or perceived sexual orientation) must contact an EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. Otherwise, the complaint may be dismissed as untimely.

2. The EEO counselor will explain that the nondiscrimination statutes do not currently prohibit discrimination on the basis of sexual orientation. The aggrieved person will also be advised of his or her right to representation and to anonymity in the informal process.

3. The EEO counselor will advise an aggrieved person of other possible avenues of redress, i.e., that he or she may:

(A) file a grievance under the negotiated grievance procedure in an applicable collective bargaining agreement, if any;

(B) file a complaint with the Office of Special Counsel;


(C.) Appeal to the Merit Systems Protection Board (MSPB), if the action complained of is otherwise appealable to the MSPB (and the MSPB takes jurisdiction);¹


(D) file an administrative grievance;


(E) file a complaint under the Department's modified EEO process described herein.

4. To promote fairness and efficiency, and avoid multiple investigations of the same allegation(s), if the aggrieved person elects to use one or more of the avenues outlined in 3(a) through (d) above, the modified EEO process will not be available.

C. THE DEPARTMENT'S MODIFIED EEO PROCESS

1. If the aggrieved person decides to use the modified EEO process, the EEO counselor will attempt to resolve the matter within the same time frames set forth in 29 C.F.R. Part 1614. The aggrieved person may elect to remain anonymous during the counseling procedure. If the matter cannot be resolved, the counselor will issue a "Notice of Right to File a Discrimination Complaint." If the bureau has an alternative dispute resolution process in place for the informal complaint process, the counselor will inform the aggrieved person of his or her rights under this process.

2. If the complaint cannot be resolved during EEO counseling, the aggrieved may file a complaint within fifteen (15) days of the receipt of the Notice of Right to File. Complaints should be filed with a Treasury Regional Complaint Center in Chicago, Dallas, San Francisco, or Washington, D.C. Complaints should be filed with the Regional Complaint Center which covers the state where the Complainant's post of duty is located, or where the Complainant resides (if an applicant for employment).

3. The Complainant may elect at any time to be represented by an individual of his or her choosing. The agency may object to a designated representative and appeal the designation to the OEOP if the agency believes that the representative has a conflict of interest. The decision of OEOP on this matter is final and not subject to further appeal. The Complainant and his or her representative (if employed by the agency) will be granted a reasonable amount of official time to prepare the complaint, and respond to agency requests for information. The agency is not obligated to incur overtime or travel expenses related to the complaint or chose of representative.

4. Each Complainant alleging discrimination based on sexual orientation will be given the attached complaint form and notice of complaint procedure by an EEO counselor. An individual who also alleges other forms or discrimination will also be given the standard complaint form.

5. The Regional Complaint Center will identify the issues raised in the formal complaint. The Complaint Center will accept, or dismiss (on the bases specified in 29 C.F.R. §1614.107(b) - .107(h)) the complaint. If not dismissed, the Complaint Center will arrange for an investigation. A copy of the investigative file will be furnished to the Complainant and to the appropriate management official with a need to know the information in the file. Treasury employees must cooperate with EEO investigators. 31 C.F.R. §0.207. After the investigation, the Director of OEOP will issue a written decision on the issue of sexual orientation discrimination. The decision of OEOP is final and there is not further administrative review of the complaint.

6. When a Complaint alleges discrimination on the basis of sexual orientation as well as another basis that would be processed under 29 C.F.R. Part 1614, the investigation should include all allegations of discrimination if the pertinent facts and dates make it economical to do so. A complainant has the right to proceed to a hearing or to appeal a Final Agency Decision only on the allegations covered by Title VII, the Rehabilitation Act or the Age Discrimination in Employment Act.

7. The Regional Complaint Center may dismiss a complaint at any time if it is determined that the complaint has become moot or that the Complainant:

(A) did not comply with the applicable time limits for contacting an EEO counselor or filing a complaint;


(B) raised the same matter in one of the alternative procedures described in B.3(a) through (d) above;


(C.) Cannot be located;


(D) did not provide the agency with information, requested in writing, relevant tot he processing of the complaint, within a reasonable time;


(E) did not state a claim of discrimination; or


(F) did not accept a certified offer of full relief before a final agency decision is issued.


7a. Review of Dismissals by the Regional Complaint Center

Any dismissal of a complaint or portion of a complaint will inform the Complainant that the Complainant may request a review of the decision. Requests for review must be in writing and must be received by the OEOP within 30 calendar days of the Complainant's receipt of the dismissal.

If the Complainant is represented by an attorney or designated representative, the 30 day time period shall be calculated from the receipt of the dismissal of the attorney or designated representative. Timeliness of the request for review shall be determined by postmark.

Requests should contain a copy of the complaint, the Regional Complaint Center's dismissal, and the Complainant's basis for the request for review.

Requests shall be addressed to:

Director
Office of Equal Opportunity Program
Department of the Treasury
1500 Pennsylvania Avenue, N.W.
Washington, DC 20220

The Complainant should provide a copy of his/her request to the Regional Complaint Center processing his/her complaint.

OEOP will review relevant documents and issue a written decision to the Complainant. Complaints will be held in abeyance pending OEOP decision on the request. There is no right to further review of OEOP decisions under this section.

8. If the OEOP decision finds discrimination, an appropriate "make whole" remedy will be ordered. The goal of the remedy is to place the Complainant in the same position as if the discrimination had not occurred. A Complainant is obliged to mitigate his or her damages. The remedy may include, but is not limited to the following:

(A) A commitment that corrective or preventive action will be taken (although as in any discrimination complaint, disciplinary action against another employee is not part of the remedy that may be offered to complainant);


(B) an offer of placement in the position at issue (or an equivalent position) the person would have occupied absent discrimination;


(C.) Payment of any lost earnings or benefits the person may have been denied, including back pay (when an unwarranted or unjustified personnel action is found), as computed by 5 C.F.R. § 550.805;


(D) cancellation of any unwarranted personnel action and restoration of the employee's prior status;


(E) expungement from the employee's official personnel file of any adverse materials relating to the discriminatory employment practice; and,


(F) full opportunity to participate in the employee benefit denied (e.g., training preferential work assignment, etc.).

9. Complainants may allege that a settlement agreement has been breached by filing a breach allegation with the Director of the OEOP within 30 days of the date of the alleged breach or of the date the Complainant should have known of the breach. The Director, OEOP will investigate the breach allegation and notify the Complainant in writing, of the decision. The decision of the OEOP is final. If warranted, OEOP will order compliance with the agreement or will reinstate the complaint at the point processing ceased.