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LGBTQ+ Discrimination

Experienced Federal Employment Attorneys

Title VII Prohibits Discrimination Against LGBTQ Employees

Federal employees who identify as lesbian, gay, bisexual, transgender, queer, and intersex are protected from discrimination and harassment based on these protected classes under Title VII of the Civil Rights Act of 1964 which ensures that federal employees can perform their jobs free from discrimination based on race, color, national origin, religion, and sex. In June 2020, the Supreme Court made it clear Bostock v. Clayton County, 590 U.S. __ (2020), that the prohibition on sex discrimination under Title VII includes sexual orientation and gender identity, with the Supreme Court stating, “an employer who fires an individual merely for being gay or transgender defies the law.”

 This is now the law of the land, and the EEOC now ensures that LGBTQ federal employees can enforce their rights through the EEO complaint process the same as members of other protected classes.

President Biden has also issued an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation in which he directed the head of every federal agency to apply the Bostock decision.

 

EEOC Decisions Protecting LGBTQ Federal Employees

Prior to this, however, the EEOC had already issued several favorable decisions with respect to the rights of transgender federal employees in the federal government workplace, including:

  • Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (Apr. 12, 2012), where the EEOC held that discrimination based on transgender status is sex discrimination in violation of Title VII, settling a long-standing dispute that left members of the LGBT community without Title VII protections.
  • Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395 (Mar. 27, 2015), where the EEOC held that a federal employee’s access to and/or opportunity to enjoy the compensation, terms, conditions, or privileges of their employment cannot be conditioned on undergoing or providing proof of surgery or other medical procedure. The EEOC held that intentional reference to a transgender employee by pronouns not associated with the gender they identify with can constitute hostile work environment harassment, and that denying an employee equal access to bathroom facilities corresponding to the employee's gender identity constitutes a harm or loss with respect to the terms and conditions of the employee’s employment on the basis of sex.
  • Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015), where the EEOC decided that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”
  • Darin B. v. OPM, EEOC Appeal No. 0120161068 (Mar. 6, 2017), where the EEOC held that a transgender federal employee stated a viable EEO claim by alleging that the agency administering the insurance benefits of the Federal Employee Health Benefit program violated Title VII by allowing an insurance carrier to deny pre-authorization for health insurance benefits for gender reassignment surgery whereas pre-authorization was granted for other types of surgeries.

 

If you believe that your federal agency is discriminating against you because of your sexual orientation or gender identity, the federal employment attorneys at the Federal Practice Group can consult with you to explain how to protect your rights, file an EEO complaint, and seek relief from the discrimination you are facing. Contact us today to set up a consultation.

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