Following is summary recently published by the EEOC of key cases involving discrimination based on sexual orientation or gender identity in the federal workplace.
Gender Identity/Transgender Status
- Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012) (decision by Commission holding that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on sex and therefore violates Title VII).
- Darin B. v. U.S. Office of Personnel Mgmt., EEOC Appeal No. 0120161068, 2017 WL 1103712 (Mar. 6, 2017) (a transgender male complainant stated a cognizable claim of sex discrimination when he alleged that his Federal Employee Health Benefits insurance plan denied pre-authorization for nipple-areola reconstruction; the failure to use or exhaust the process for Agency review of an insurance carrier’s decision does not preclude an employee from asserting a viable claim in the EEO process).
- Jacki A. v. Dep’t of the Treasury, EEOC Appeal No. 0120150248, 2016 WL 1729907 (Apr. 21, 2016) (Complainant, a transgender female who was a member of an Agency employee organization that conducted Bible-study discussions and was formed in response to employees’ religious disagreement with the Agency allowing an employee organization for gay, lesbian, or bisexual employees, stated a viable claim of harassment when the president of the organization would not allow her to attend meetings and give presentations while dressed as a female).
- Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015) (decision by Commission holding that Agency restrictions on transgender female’s ability to use a common female restroom facility constituted disparate treatment on the basis of sex and that the restroom restrictions combined with hostile remarks, including intentional pronoun misuse, created a hostile work environment on the basis of sex).
- Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014) (The Agency’s refusal to change a transgender employee’s records to reflect his new name and gender for over a year, coupled with an Information Security Officer’s hostility towards him because of the change in his gender identity from female to male, was severe or pervasive enough to constitute a claim of sex based harassment).
- Jameson v. U.S. Postal Serv., EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013) (intentional misuse of the employee’s new name and pronoun may cause harm to the employee, and may constitute sex based discrimination and/or harassment).
- Day v. U.S. Postal Serv., EEOC Appeal No. 0120122376, 2013 WL 783235 (Feb. 19, 2013) (allegation that Agency removed Complainant from new-employee orientation and withdrew her job offer based on her transgender status stated a claim under Title VII).
- Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (decision by the Commission holding that a claim alleging discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII).
- Foster B. v. Dep’t of Health and Human Serv. (Indian Human Serv.), EEOC Appeal No. 2019005682, 2021 WL 1925576 (Apr. 12, 2021) (finding that Complainant was subjected to harassment based on sexual orientation when his subordinate routinely referred to Complainant as a “faggot,” in and out of Complainant’s presence, to Complainant’s subordinates and superiors for almost two years; finding that the Agency’s anti-harassment policy failed to comply with EEOC Management Directive 715).
- Phyllis F. v. Dep’t of Homeland Security (Transp. Security Admin.), EEOC Appeal No. 0120150799, 2021 WL 871245 (Feb. 16, 2021) (finding that Complainant was subjected to harassment based on her sexual orientation when, among other things, a coworker made several offensive comments towards Complainant about her sexual orientation, suggested that she needed a man in her life, disapproved of homosexuality and gay marriage; Complainant was also retaliated against for complaining about the harassment when she was given lower performance ratings and terminated).
- Thomasina B. v Dep’t of Defense (Defense Logistics Agency), EEOC Appeal No. 0120141298, 2021 WL 674725 (Feb. 9, 2021) (finding that Complainant was subjected to more than two years of sex-based harassment from both her coworkers and supervisors, who, among other things, spread rumors that Complainant was gay and was dating a female coworker, told Complainant she was going to hell, and told Complainant she was harming her children because of her sexual orientation).
- Bart M. v. Dep’t of Interior (Bureau of Land Mgmt.), EEOC Appeal No. 0120160543, 2021 WL 308612 (Jan. 14, 2021) (decision by the Commission applying Bostock v. Clayton County, 140 S.Ct. 1731 to find the agency discriminated against complainant on the basis of sexual orientation when it did not select him for a supervisory position).
- Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133382 2015 WL 755097(Feb. 11, 2015)(held that hateful nature of the alleged comments calling Complainant “homo” and telling him he was “living in sin” and would be “going “to hell” coupled with the alleged lack of adequate response on the part of management, sufficiently severe to state a viable claim of harassment that required further investigation and processing).
- Complainant v. Consumer Financial Protection Bureau, EEOC Appeal No. 0120141108, 2014 WL 7398828 (Dec. 18, 2014)(advised the Agency that lesbian, gay, and bisexual employees who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a complaint under the 1614 process because they may have experienced sex discrimination; also strongly recommended that the Agency provide updated training to all employees and management on Title VII’s prohibition of discrimination based on sexual orientation and gender stereotyping).
- Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 2014) (recognizing that sex discrimination claims intersect with sexual orientation discrimination claims such that allegations of discrimination on the basis of sexual orientation can be construed as claims of discrimination on the basis of sex).
- Complainant v. Dep’t of Transp., EEOC Appeal No. 0720140023, 2014 WL 3790725 (July 24, 2014) (affirmed Administrative Judge finding of harassment based on sexual orientation).
- Couch v. Dep’t of Energy, EEOC Appeal No. 0120131136, 2013 WL 4499198 (Aug. 13, 2013) (relied on the use of derogatory slurs to prove a sex-based harassment claim; the Commission noted that the words “fag” and “faggot” have been historically used in the United States as a highly offensive, insulting, and degrading sex-based epithet against gay men and men who are perceived as insufficiently masculine).
- Morris v. Dep’t of the Army, EEOC Appeal No. 0120130749, 2013 WL 2368686 (May 23, 2013) (the Commission reversed and remanded an Agency’s dismissal where Complainant alleged that he was subjected to a hostile work environment when he was told “you are in the South now, you and [your partner] might find you are not as safe or accepted here as you were in New York. This is the Bible Belt.”).
- Culp v. Dep’t of Homeland Security, EEOC Appeal No. 0720130012, 2013 WL 2146756 (May 7, 2013) (complaint stated a claim of sex discrimination under Title VII where supervisor counseled complainant that associating with lesbian colleague created an improper perception).
- Baker v. Social Security Admin., EEOC Appeal No. 0120110008, 2013 WL 1182258 (Jan. 11, 2013) (the Commission held that as long as the allegations state a viable claim of sex discrimination, the fact that a Complainant has characterized the basis of discrimination as sexual orientation does not defeat an otherwise valid sex discrimination claim).
- Castello v. U.S. Postal Serv., EEOC Request No. 0520110649, 2011 WL 6960810 (Dec. 20, 2011) (complainant’s allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on the alleged discriminator’s view that having relationships with men is an essential part of being a woman).
- Veretto v. U.S. Postal Serv., EEOC Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011) (complainant’s allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on the alleged discriminator’s view that marrying a woman is an essential part of being a man).