Addressing Sexual Orientation and Gender Identity 

Discrimination in Federal Civilian Employment

A Guide to Employment Rights, Protections, and Responsibilities 

This resource guide was developed by the Office of Personnel Management, 

the Equal Employment Opportunity Commission, 

the Office of Special Counsel, and the Merit Systems Protection Board. 

 

Disclaimer: This resource guide is a general introduction to the possible avenues available 

for addressing discrimination based on sexual orientation and gender identity. 

It is not intended to be a substitute for legal advice on the best course of action for a particular individual. 

Rev. June 2015

Table of Contents

Introduction 2 

I. Agency Responsibilities 2 

II. Employment Rights and Protections 

A. Title VII of the Civil Rights Act of 1964 (EEOC and Agencies) 3 

B. Civil Service Reform Act of 1978 (OSC and MSPB) 4 

C. Other Procedures (Unions and Agencies) 6 

III. Other Procedural Issues 7 

Conclusion and More Resources 8 
2 

Introduction 

It is the policy of the Federal Government to provide equal employment opportunity to all individuals. 

Executive Order 11478, as amended, expressly prohibits discrimination based on sexual orientation and 

gender identity within executive branch civilian employment. It also prohibits discrimination based on 

race, color, religion, sex, national origin, disability, parental status, and age. The Executive Order states that 

this non-discrimination policy “must be an integral part of every aspect of personnel policy and practice in 

the employment, development, advancement, and treatment of civilian employees of the Federal 

Government, to the extent permitted by law.”

There are a number of administrative and legal protections available to federal workers who believe they 

have been discriminated against because of their sexual orientation or gender identity, including:

 Title VII of the Civil Rights Act of 1964;

 Civil Service Reform Act of 1978; and/or

 Other Procedures. 

Title VII’s prohibition on sex discrimination protects persons who have been discriminated against based 

on sexual orientation and gender identity. Further, civil service laws prohibit certain employment decisions 

or personnel actions when the decisions or actions are based on conduct that does not adversely affect job 

performance, including sexual orientation and gender identity. In addition, individual agencies and unions 

may establish procedures to resolve disputes, including complaints of discrimination based on sexual 

orientation and gender identity. 

This resource guide provides basic and general information about these various procedures and the 

circumstances under which federal applicants and employees may be able to take a particular course of 

action. Under some circumstances, more than one procedure may be available, and the choice of one 

procedure may preclude the use of others. 

Most of the available avenues require employees to raise the 

allegations within a specific time frame from the date that the 

alleged discrimination occurred. The remedies available may 

also differ depending on the course of action that is chosen. 

Federal employees should review the rules and processes 

specific to their agencies, and those issued by agencies that 

decide complaints and appeals, before deciding whether and 

how to proceed. Individuals also should consider consulting 

with an attorney experienced in federal employment issues or, 

where applicable, a knowledgeable union officer.

I. Agency Responsibilities

As the nation’s largest employer, the Federal Government 

should set an example for other employers that employment 

discrimination based on sexual orientation or gender identity is 

not acceptable. All federal workers—including lesbian, gay, 

bisexual, and transgender (LGBT) individuals—should be able 

to perform their jobs free from any unlawful discrimination. 

Key Definitions

Sexual orientation means one’s emotional 

or physical attraction to the same and/or 

opposite sex. 

Gender identity means one’s inner sense of 

one’s own gender, which may or may not 

match the sex assigned at birth. Different 

people choose to express their gender 

identity differently. For some, gender may be 

expressed through, for example, dress, 

grooming, mannerisms, speech patterns, and 

social interactions. Gender expression usually 

ranges between masculine and feminine, and 

some transgender people express their 

gender consistent with how they identify 

internally, rather than in accordance with the 

sex they were assigned at birth. 
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Agencies, including federal officials and managers, should commit to promoting a work environment that 

is free from sexual orientation and gender identity discrimination, in accordance with existing federal law. 

Agencies should notify employees about avenues of redress and encourage them to report instances of 

discrimination to their supervisors and to the agency’s Equal Employment Opportunity (EEO) office.

When made aware of problems, managers should consult with their human resources office or agency legal 

counsel to ensure that appropriate steps are taken. All reports of sexual orientation or gender identity 

discrimination should be taken seriously and addressed promptly and properly. In some circumstances, 

this may involve taking corrective steps or disciplining those who discriminate, as applicable. 

II. Employment Rights and Protections 

A. Title VII of the Civil Rights Act of 1964 (EEOC and Agencies)

Title VII of the Civil Rights Act of 1964 states, “All personnel actions affecting employees or applicants 

for employment . . . [in the Federal Government] . . . shall be made free from any discrimination based on 

race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-16(a). The Equal Employment Opportunity 

Commission (EEOC) is the agency charged with interpreting and enforcing Title VII in the Federal 

Government. The EEOC has recognized that Title VII’s prohibition on sex discrimination provides 

protections for persons who have been discriminated against based on sexual orientation and gender 

identity. 

EEOC and Agencies – Filing a Claim under the Federal EEO Process 

(29 C.F.R. Part 1614)

Individuals who believe they have been discriminated against based on sexual orientation or gender 

identity may file a complaint through their agency’s federal sector EEO complaint process. The EEOC has 

instructed agencies to accept claims alleging sexual orientation or gender identity discrimination as claims 

of sex discrimination and to investigate those claims to determine if discrimination on the basis of sex 

occurred (including discrimination based on sex stereotypes). 

Very generally, the EEO complaint process works as follows:

 The person has 45 days from the date of the alleged discrimination to notify an EEO counselor at 

his or her agency.

 The agency counselor may then attempt to resolve the claim informally through alternative dispute 

resolution or other practices. 

 If the attempts to resolve the claim informally are unsuccessful, the applicant or employee is given 

a notice of right to file a complaint. The applicant or employee has 15 days from the date he or she 

receives that formal notice to file a formal complaint. 

 If the agency accepts the claim, it will conduct an investigation, which generally must be completed 

within 180 days. Upon completion of the investigation, it will issue to the applicant or employee 

the investigative file and provide notice of his or her choice of receiving a final agency decision 

(FAD) based on the results of the investigation or requesting a hearing from an EEOC 

Administrative Judge. 
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 If a hearing is requested, an EEOC Administrative Judge may hold a hearing on the complaint and 

will issue a decision as to whether discrimination occurred. The agency will then issue a Final 

Order either accepting the decision of the EEOC Administrative Judge or rejecting it and 

appealing the matter to the EEOC. 

 The applicant or employee has the option of accepting the FAD, appealing the decision of the 

EEOC Administrative Judge or FAD to the EEOC (this must be done within 30 days of receiving 

the FAD), or filing a claim in federal court (this must be done within 90 days of receiving the 

FAD). Under Title VII, an applicant or employee MUST work through the administrative EEO 

process before he or she can file a claim in federal court. 

 Decisions appealed to the EEOC are reviewed by attorneys in its Office of Federal Operations. In 

adjudicating the appeal, the EEOC will determine whether the agency dealt with the claim 

appropriately and applied the correct legal analysis.

 Decisions from the EEOC are final and binding on the agency. The applicant or employee, 

however, retains the option of taking his or her claim to federal court after the EEOC issues a 

decision on an appeal (this must be done within 90 days of receiving the EEOC decision). 

Additional information regarding the federal sector EEO complaint process may be found on the EEOC’s 

website at www.eeoc.gov/federal/fed_employees/complaint_overview.cfm. The EEOC’s website also has 

information about the enforcement protections for LGBT workers at 

www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. 

Individuals with questions should contact the relevant agency EEO Office or the EEOC’s Office of 

Federal Operations at 202-663-4599 or ofo.eeoc@eeoc.gov. 

B. Civil Service Reform Act of 1978 (OSC and MSPB)

The Civil Service Reform Act of 1978 describes prohibited personnel practices. Two provisions prohibit 

discrimination based on sexual orientation and gender identity. First, 5 U.S.C. § 2302(b)(1) parallels Title 

VII’s prohibitions against workplace discrimination based on sex. As described above, the EEOC has held 

that sex discrimination can include discrimination based on sexual orientation and gender identity. 

Second, 5 U.S.C. § 2302(b)(10) prohibits agencies from discriminating against employees based on conduct 

that does not adversely affect job performance. This prohibition has long been recognized as barring 

discrimination based on sexual orientation and gender identity. 

When individuals believe that they have been subjected to a prohibited personnel practice based on sexual 

orientation or gender identity, they may seek assistance under certain circumstances from the U.S. Office 

of Special Counsel (OSC) and/or the Merit Systems Protection Board (MSPB). 

OSC – Filing Prohibited Personnel Practice Complaints

OSC is an independent investigative and prosecutorial agency that investigates complaints alleging 

prohibited personnel practices, including those involving discrimination based on sexual orientation and 

gender identity. OSC often defers to the agencies’ federal sector EEO complaint processes and the EEOC 

when an individual brings a claim under section 2302(b)(1). 
5 

Very generally, the OSC complaint process works as follows: 

 A person may file a complaint with OSC, which will determine whether there are reasonable 

grounds to believe that the agency has committed or will commit a prohibited personnel practice. 

 OSC may request that the agency stop certain personnel actions from taking place while OSC is 

investigating whether the personnel actions were taken as a result of a prohibited personnel 

practice. 

 If a violation is found, OSC may petition MSPB for corrective action to provide a remedy for the 

affected individual and/or may seek disciplinary action by MSPB against the individual(s) who 

committed the prohibited personnel practice. 

 In some cases, OSC may achieve favorable results for applicants or employees without litigation 

before MSPB by obtaining settlements of complaints prior to the initiation of any formal 

complaint to MSPB. OSC also may act as an intermediary between the individual and the agency to 

resolve issues.

Complaints to OSC must be in writing. Complaint forms may be electronically filed through OSC’s e-filing 

system (www.osc.gov/e-file) or downloaded from OSC’s website (www.osc.gov/form11). 

The procedures for corrective action by OSC are set forth in detail in 5 U.S.C. § 1214. The procedures for 

disciplinary action are contained in 5 U.S.C. § 1215. 

Additional information about prohibited personnel practices may be found at OSC’s website at 

www.osc.gov. OSC’s website also has information about the federal protections for LGBT workers at 

https://osc.gov/Resources/2014%20LGBT%20Handout.pdf. 

Individuals with questions should contact OSC at (202) 254-3670 (TDD-ready) or toll-free at (800) 872-

9855 (TDD-ready), or by mail at: 

Office of Special Counsel

Complaints Examining Unit 

1730 M Street, N.W., Suite 218 

Washington, D.C. 20036-4505 

MSPB – Filing Certain Personnel Action Appeals

The MSPB is an independent, adjudicative agency that hears, among other things: (1) appeals of certain 

agency personnel actions brought by employees, former employees, or applicants, including removals, 

suspensions for more than 14 days, and reductions in grade and pay of certain federal employees who 

possess tenure; and (2) complaints brought by OSC involving prohibited personnel practices (see above). 

Very generally, an MSPB appeal proceeds as follows: 

 An individual files an appeal with one of the MSPB’s regional offices. 

 The MSPB Administrative Judge assigned to the case determines whether an appeal is filed within 

the time limits and whether the MSPB is authorized to adjudicate the appeal of the agency action. 
6 

 If an appeal meets these requirements, the individual has the right to choose between a hearing or 

a decision on the written record. 

 When an MSPB Administrative Judge issues a decision, either the individual or the agency may ask 

the three-member board at MSPB Headquarters in Washington, D.C., to review any part of the 

Administrative Judge’s decision believed to be erroneous. 

 Individuals, but not agencies, may seek judicial review of an MSPB decision in federal court. 

However, the Office of Personnel Management (OPM) may seek judicial review when the Director 

of OPM believes that the MSPB’s decision is erroneous and will have a substantial impact on civil 

service law. 

The procedures that the MSPB follows are contained in 5 C.F.R. Part 1201. 

Additional information about the MSPB appeal process may be found at the MSPB’s website at 

www.mspb.gov. The MSPB’s website also has information about the MSPB’s regulations, the MSPB’s 

decisions, and forms for filing appeals and petitions for review. 

Individuals with questions about the MSPB process may contact the MSPB at (202) 653-7200 or toll-free 

at (800) 877-8339 (TDD-ready), or by mail at: 

Merit Systems Protection Board

1615 M Street, N.W. 

Washington, D.C. 20419

The addresses of MSPB’s regional offices can be found at Appendix II, 5 C.F.R. Part 1201.

 C. Other Procedures (Unions and Agencies) 

Negotiated Grievance Procedures 

If employees think they have been the victims of sexual orientation or gender identity discrimination, they 

may also wish to contact their union. 

Employees who are in a certified bargaining unit—that is, who are represented by a duly recognized labor 

organization and covered by a collective bargaining agreement—may file grievances in accordance with 

5 U.S.C. § 7121. 

 The definition of a grievance is contained in 5 U.S.C. § 7103(a)(9) and generally permits an 

employee to complain about most matters relating to employment. 

 Certain subject matters are excluded from the negotiated grievance procedure, including 

complaints related to retirement, life insurance, and health insurance. 

 Unless specifically excluded from the grievance procedures by collective bargaining agreement, a 

grievance may allege the commission of a prohibited personnel practice, including one related to 

sexual orientation or gender identity discrimination. 
7 

 As part of the negotiated grievance procedure, the union that represents the employee may elect to 

place the dispute before an arbitrator, who is usually jointly selected by the union and the agency as 

provided in the collective bargaining agreement. Grievants may not take the case to arbitration on 

their own. 

 Under current law, an arbitrator hearing a case concerning an alleged prohibited personnel practice 

may: 

• Stop any personnel action from taking place while hearing the case if the arbitrator

determines that there are reasonable grounds to believe that a prohibited personnel practice 

has been committed or will be committed; and 

• Order certain disciplinary action by an agency against the person committing the 

prohibited personnel practice. 

 The rules for appealing adverse arbitration decisions differ depending upon the subject of the 

grievance. Generally, matters that may be heard by MSPB may be appealed to the United States 

Court of Appeals for the Federal Circuit. Otherwise, they may be appealed to the Federal Labor 

Relations Authority (FLRA). Ordinarily, one may not appeal a decision of the FLRA arising from 

arbitration in the courts. It is important to become informed about the proper appeals route in any 

particular circumstance. 

Agency-Specific Procedures

Another possible area of redress for those who believe they have been discriminated against based on their 

sexual orientation or gender identity is the availability of any agency-specific procedures. 

Many agencies have their own systems to resolve disputes between an employee and the agency that may 

not be available elsewhere. In general, these systems try to achieve an informal resolution so that disputes 

do not have to be decided by higher levels of management. Specific procedures and time limitations vary 

by agency. 

An employee considering such procedures must become familiar with the rules governing the particular 

agency’s system. Employees who believe that they have been discriminated against due to their sexual 

orientation or gender identity should ask their human resource office for a copy of their agency procedures 

to determine the procedures to follow and subjects they cover. 

III. Other Procedural Issues

Election of Remedies 

Federal applicants and employees may seek protection from discrimination based on sexual orientation or 

gender identity under both Title VII and the Civil Service Reform Act. In other words, they may file EEO 

complaints and complaints of prohibited personnel practices. 

As discussed above, while an individual may file both types of complaints, the complaint alleging a

prohibited personnel practice must proceed under one and only one of the following processes: 

 OSC;

 MSPB; 
8 

 Negotiated grievance procedures; or 

 Agency-specific procedures. 

The processes for each of these routes are described above in this resource guide. Individuals choosing to 

proceed should be careful to select the best process for them. 

Differences in EEOC and OSC Processes

This resource guide describes a variety of avenues for applicants and employees to pursue complaints of 

sexual orientation or gender identity discrimination in the federal workplace. The two government-wide 

(with some exceptions) processes at EEOC and OSC for addressing these complaints are summarized in 

the table on the last page. 

Conclusion

We hope that this resource guide will provide some important information to those who believe they have 

been the victims of discrimination based on sexual orientation or gender identity. 

This resource guide should be widely distributed to federal workers and should be made available for 

review in central locations. Dissemination of information on procedural remedies is of great importance to 

individuals who may feel victimized by discrimination. But of primary importance is creating an 

atmosphere of fairness to applicants and employees. They should be secure in the knowledge that the 

federal agency for which they work will not treat them differently or less favorably on account of sexual 

orientation, gender identity, or any other consideration unrelated to merit. 

Through the equitable treatment of all applicants and employees, the Federal Government can set an 

example for the nation that we serve. 

More Resources

The Unique Role of OSC in Protecting LGBT Employees in the Federal Government (OSC 2014), 

go.usa.gov/3KP6h.

 

Sexual Orientation and the Federal Workplace (MSPB 2014), go.usa.gov/3KP6H.

Facts about Discrimination in Federal Government Employment Based on Sexual Orientation and 

Gender Identity (EEOC 2012), go.usa.gov/3KPFP. 

Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace (OPM 2015), 

go.usa.gov/3KPeJ. 

OPM Final Regulation on Various Nondiscrimination Provisions, 79 Fed. Reg. 43919 – 43923 (OPM July 

29, 2014), go.usa.gov/3KPz5. 
9 

EEOC OSC

Legal 

Authority 

Title VII of the Civil Rights Act of 1964, 

specifically 42 U.S.C. § 2000e-16.

The Civil Service Reform Act of 1978, specifically 

5 U.S.C. §§ 2302(b)(1) and 2302(b)(10).

Statute of 

Limitations for 

Filing a Claim

A complainant has 45 days from the date of the 

alleged discrimination to notify an EEO 

counselor at one’s agency. If the attempts to 

resolve the claim informally are unsuccessful, the 

complainant is given a notice of right to file a 

formal complaint with one’s agency and has 15 

days from the date of that notice to file a formal 

complaint.

OSC does not have a statute of limitations for 

accepting prohibited personnel practice 

complaints. However, it is typically easier to 

investigate claims made close in time to when the 

alleged discrimination occurred.

Federal 

Agencies 

Covered by 

Legal 

Authority

EEOC has jurisdiction over the federal executive 

branch and certain other agencies. See 29 C.F.R. 

§ 1614.103. 

OSC has jurisdiction within the federal executive 

branch. OSC does not have section (b)(1) or 

(b)(10) jurisdiction in the following agencies: 

Federal Bureau of Investigation, U.S. Postal 

Service, Postal Regulatory Commission, 

intelligence agencies, Federal Aviation 

Administration, government corporations, and 

non-appropriated fund employees.

Investigative 

and Other 

Deadlines

The agency investigation generally must be 

completed within 180 days from the filing of the 

complaint. A complainant then has the option of 

getting a final agency decision or a hearing from 

an EEOC Administrative Judge.

OSC investigations do not have deadlines. 

However, if OSC investigates, an OSC 

investigator will contact a complainant at least 

once every 60 days.

Temporary 

Relief N/A

OSC can request a delay, or “stay,” of an adverse 

personnel action either informally from the 

agency involved or formally from MSPB. OSC 

will consider a stay request if there are reasonable 

grounds to believe that a prohibited personnel 

practice occurred.

Corrective 

Make-Whole 

Remedies

– job restoration

– nondiscriminatory placement in a position the 

victim would have occupied if the discrimination 

had not occurred

– reversal of suspensions and other adverse 

actions

– back pay and lost benefits

– compensatory damages and reasonable and 

foreseeable damages, including attorneys’ fees

– corrective or preventive actions taken to cure or 

correct the source of the identified discrimination

– job restoration

– nondiscriminatory placement in a position the 

victim would have occupied if the discrimination 

had not occurred

– reversal of suspensions and other adverse 

actions

– back pay and lost benefits

– compensatory damages and reasonable and 

foreseeable damages, including attorneys’ fees

– corrective or preventive actions taken to cure or 

correct the source of the identified discrimination

Disciplinary 

Action

EEOC cannot pursue disciplinary action against 

federal employees, but can refer cases to OSC.

OSC can decide to pursue disciplinary action 

against federal employees who discriminate.

Appeal Rights

A complainant has 30 days after either receiving a 

final agency decision or the dismissal of their 

complaint to file an appeal to the EEOC. Within 

90 days of receipt of EEOC’s decision on the 

appeal, a complainant can file a claim in federal 

court. A complainant must work through the 

administrative EEO process before they can file a 

claim in court.

If OSC makes a preliminary decision to close a 

section (b)(1) or (b)(10) complaint, complainants 

are provided 13 days to request review of this 

preliminary decision.