Your Rights as an LGBTQ Employee of the Federal Government

As an LGBTQ employee of the federal government, you have clear legal rights. However, understanding and protecting your legal rights can be difficult. While progress is slowly being made, finding the information you need isn’t as easy as it should be, and many federal employers still do not have a firm grasp of LGBTQ employees’ rights.

Nonetheless, your rights exist (although it may not always feel like it), and there is information out there if you know where to look. In this article, we’ve put together an overview of what you need to know:

The Anti-Discrimination Laws that Protect LGBTQ Federal Employees

There are two main anti-discrimination laws that protect LGBTQ federal employees. Executive Order 11478 (as amended by Executive Order 13087) also specifically prohibits discrimination on the basis of sexual orientation.

1. Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (often simply referred to as “Title VII”) is one of the most important anti-discrimination laws that we have in the United States. Title VII prohibits employment discrimination based on sex (among other protected characteristics), and it applies to federal agencies and all other federal employers.

Since its enactment in 1964, federal courts have broadly interpreted Title VII in many respects. This includes broadly interpreting Title VII’s protection against sex-based discrimination to include protection against discrimination based on sexual orientation, transgender status and gender nonconformity. The U.S. Equal Employment Opportunity Commission (EEOC) has interpreted Title VII similarly. As a result, if you are a victim of LGBTQ discrimination and you work for (or applied for a job with) the federal government, you can pursue a discrimination claim in court or through the EEOC’s complaint procedures.

2. Civil Service Reform Act of 1978

The Civil Service Reform Act of 1978 prohibits federal employers from discriminating against employees and job applicants based on “conduct which does not adversely affect the[ir] performance.” As the U.S. Merit Systems Protection Board (MSPB) explains, this prohibition is intended to ensure that all federal employees and job applicants “receive fair and equitable treatment in all aspects of personnel management with proper regard for their privacy and constitutional rights and should be protected against arbitrary action and personal favoritism.”

Among other things, this means that federal employers cannot consider an employee’s or job applicant’s LGBTQ status when making employment-related decisions. LGBTQ employees and job applicants who believe that the government has violated their rights under the Civil Service Reform Act of 1978 can file claims with the MSPB’s Office of Special Counsel (OSC), and those who are facing adverse personnel action can raise violations of the statute as an affirmative defense.

3. Executive Order 11478 (as amended by Executive Order 13087)

President Nixon signed Executive Order 11478 in 1969, between the passage of Title VII and the Civil Service Reform Act. In its original form, Executive Order 11478 prohibited discrimination in federal employment based on “race, color, religion, sex, national origin, handicap, or age.”

In 1998, President Clinton signed Executive Order 13087, which amended Executive Order 11478 to include discrimination based on sexual orientation. While this may seem relatively unimportant given that Title VII has been interpreted to include sexual orientation-based discrimination as well, the Supreme Court did not make this interpretation until its landmark decision in Bostock v. Clayton County on June 15, 2020. As a result, until relatively recently, Executive Order 13087 played a significant role, and it remains noteworthy when discussing LGBTQ federal employees’ rights.

Other Federal Laws that Protect LGBTQ Employees and Job Applicants

Of course, all of the laws that apply generally to federal employees and job applicants apply to you as well. This includes laws such as those that prohibit pregnancy discrimination, discrimination based on genetic information, discrimination based on disabilities, and retaliation. Broadly speaking, federal employees enjoy several job-related protections that do not apply in the private sector, and these protections are afforded to all employees regardless of their sexual orientation, gender identity, gender expression, transgender status and other personal characteristics.

Examples of LGBTQ Federal Employees’ and Job Applicants’ Legal Rights

So, what do all of these laws mean for you? Some examples of your legal rights as an LGBTQ federal employee or job applicant include:

• The Right to Have Hiring and Employment Decisions Based on Your Qualifications – As an LGBTQ employee or job applicant, you have the right to have all hiring and employment decisions be based solely on your qualifications for the position or opportunity.
• The Right to Be Free from Harassment and Discrimination at Work – LGBTQ employees have the right to be free from all forms of discrimination at work. This includes the right to be free from all forms of sexual harassment.
• The Right to Dress According to Your Gender Identity and Expression and Be Called By Your Chosen Name – As a federal employee, you have the right to choose how you dress. You also have the right to be called by your chosen name, even if this is not the name on your government identification records.
• The Right to Privacy Concerning Your Transgender Status and Medical History – All federal employees have a right to privacy. Among other things, this includes the right to privacy concerning employees’ transgender status and their medical history.
• The Right to Take Legal Action if You Experience Discrimination or Harassment – If you experience discrimination or harassment as an LGBTQ employee or job applicant, you have the right to take legal action. Various remedies are available, including placement, reinstatement, back pay and other damages in appropriate cases.

Schedule a Consultation with Federal Employment Attorney Jay W. Stafford and His Team

If you have questions about your legal rights as a federal employee or job applicant, or if you have experienced discrimination or harassment based on your LGBTQ status, we encourage you to contact us for more information. To schedule a consultation with federal employment attorney Jay W. Stafford and his team, please call 410-514-6099 or contact us confidentially online today.