Following is the summary of a recent MSPB report on issues related to sexual orientation in the federal workplace.
Prior to 1975, Federal Government policy considered an individual’s sexual orientation when determining suitability for Federal employment. Although we will never know the exact number of individuals who were denied employment or who had their employment terminated based on their actual or assumed sexual orientation, one estimate places this number between 7,000 and 10,000 in the 1950’s alone. It is impossible to determine the number of individuals who may not have sought Federal employment due to the knowledge that their sexual orientation made them ineligible for selection.
The tenth Prohibited Personnel Practice (PPP) (5 U.S.C. § 2302(b)(10)) codified in 1978 bars discrimination in Federal personnel actions based on conduct that does not adversely affect job performance. This prohibition was first interpreted to bar sexual orientation discrimination in 1980 by the U.S. Office of Personnel Management (OPM). As this prohibition has been neither specifically expressed in statute nor affirmed in judicial decision, it has been subject to alternate interpretations.
An executive order signed in 1998 affirmed the policy of non-discrimination based on sexual orientation in Federal employment. As this executive order was only a statement of policy, it provided no enforceable rights for employees who believed they had been discriminated against due to their sexual orientation.
In 2012, OPM’s annual Federal Employee Viewpoint Survey (FEVS) for the first time asked Federal employees to self-identify their sexual orientation. The resulting large-scale data set presents an opportunity to examine lesbian, gay, bisexual, and transgender1 (LGBT) employee perceptions of the Federal workplace for the first time.
There are encouraging signs that the history of sexual orientation discrimination discussed in this report is being overcome. For example, LGBT employees appear to be represented in the supervisory, managerial, and executive ranks in the same proportion as they are in the overall Federal workforce. In addition, similar percentages of heterosexual and LGBT Federal employees agree that PPPs are not tolerated in the workplace. In a 2010 MSPB survey of Federal employees, three percent of respondents reported that sexual orientation discrimination had occurred in their workplace. This was a similar percentage of employees who perceived other PPP’s had occurred including discrimination based on national origin or marital status and violations of veteran’s preference laws. An additional one percent of respondents to the survey reported being the direct target of sexual orientation discrimination.
As we would expect, employees who perceived themselves to be the target of such discrimination were far less engaged in their work than other employees. Employees who perceived such discrimination had occurred but were not personally affected by the discrimination were also less engaged in their work than employees who did not believe such discrimination had occurred. That sexual orientation discrimination may affect individuals beyond the direct targets of such discrimination reinforces the importance of keeping the workplace free from this practice.
In response to the 2010 MSPB survey, 81 percent of supervisory respondents and 68 percent of non-supervisory respondents agreed that their organizations have made it clear that they prohibit sexual orientation discrimination. This means that almost one-fifth of supervisors and almost one-third of non-supervisors did not agree that their agencies have made it clear that they prohibit discrimination based on sexual orientation.
OPM has previously reported that, according to 2012 FEVS results, LGBT Federal employee perceptions of the workplace are generally less positive than those of other employees. Our further analysis of 2012 FEVS data revealed that, in some agencies for at least some workplace issues LGBT employee perceptions were as positive about the workplace as those of their heterosexual colleagues. This suggests that agencies may be able to create more inclusive cultures, resulting in a more positive atmosphere in the workplace.
Although the interpretation that the tenth PPP prohibits sexual orientation discrimination in the Federal workplace has been generally accepted, it remains an interpretation. Any ambiguity in the longstanding policy prohibiting sexual orientation discrimination would be resolved by legislation making that prohibition explicit. Such legislation could grant Federal employees who allege they are victims of sexual orientation discrimination access to the same remedies as those who allege discrimination on other bases.
Given the differences we found in workplace perceptions between LGBT and heterosexual employees within different agencies, agencies should review their management programs, policies, and procedures to ensure that they are inclusive and fair to all employees. The disparity we found among different groups of employees regarding the extent to which they believe their organization has made it clear that it prohibits sexual orientation discrimination suggests that agencies can improve their communication of that prohibition to employees.
