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Sexual Orientation Discrimination: Questions and Answers

Avenues of Redress

In General

Employees and applicants for employment who believe they have been discriminated against based on sexual orientation may seek redress under several procedures:

  • The DOC Sexual Orientation Discrimination Complaint Process

  • The Merit Systems Protection Board Appeal Process

  • The Office of Special Counsel Complaint Process

  • A Negotiated Grievance Procedure

Employees and applicants may not seek relief from the Equal Employment Opportunity Commission or file a discrimination complaint under Title VII of the Civil Rights Act of 1964, as amended, because that law does not prohibit discrimination based upon sexual orientation.

The following sections provide basic information about the available procedures and the circumstances under which each can be used. Most of these procedures require you to raise the allegations within a specific time frame from the date that you experienced discrimination or became aware of a discriminatory act. Under some circumstances, more than one procedure may be available, and the choice of one procedure may preclude the use of others. This booklet gives a general overview of each process and contact information. You are encouraged to obtain additional information about each course of action you are considering before making a choice.

The information provided here is not intended as a substitute for legal advice. Although much information is available to you from the Department and the other agencies mentioned in this booklet, you may also wish to consult with an attorney experienced in federal employment issues, or, where applicable, a knowledgeable union officer.

DOC Sexual Orientation Discrimination Complaint Process

The Department's Sexual Orientation Discrimination complaint process was established by Department Administrative Order (DAO) 215-11. It is modeled on the Equal Employment Opportunity (EEO) Complaint Process, as well as sexual orientation discrimination complaint processes available at other federal agencies.

Like the EEO complaint process, the sexual orientation discrimination process has three parts:

  • a pre-complaint process (also called the informal complaint process or counseling);

  • a formal complaint process; and

  • an appeal process.

There are some important differences between the EEO complaint process and the Sexual Orientation Discrimination Complaint Process. The Equal Employment Opportunity Commission (EEOC), an independent federal agency, is charged with enforcing Title VII and the other laws under which EEO complaints are brought. The EEOC conducts hearings in EEO complaints and hears appeals of the Department's Final Orders on EEO complaints. Because the EEOC has no jurisdiction over sexual orientation discrimination complaints, there is no right to a hearing and no avenue of appeal outside the Department.

Who can use the Sexual Orientation Discrimination Complaint Process?

The Sexual Orientation Discrimination Complaint Process may be used by all Department of Commerce employees and applicants for employment, except the following:

  1. those who are temporary employees in the Bureau of the Census Decennial Program or are applying for such employment; and

  2. employees covered by collective bargaining agreements which do not specifically exclude sexual orientation discrimination or related retaliation from their negotiated grievance procedures.
How does the informal Counseling process work?

You must raise issues in the informal complaint process before filing a formal sexual orientation discrimination complaint. You must request counseling within 45 calendar days of the action you believe to be discriminatory, the effective date of the alleged discriminatory action, or the date that you learned or should have suspected that the agency action may be discriminatory.

Counseling for sexual orientation claims is done by EEO Counselors and works the same way as EEO counseling for Title VII claims. Counselors help to define the issues raised in the complaint and try to facilitate an agreement to resolve the issues. They also provide basic information about the sexual orientation discrimination process and other procedures you can use to raise your claim. The Counselor is neutral and does not represent or support your position or management's position. You may remain anonymous during EEO Counseling. However, remaining anonymous may make it difficult for the Counselor to facilitate a resolution of your concerns. Counseling is generally completed within 30 calendar days.

Is Mediation available in the sexual orientation discrimination complaint process?

Mediation, an Alternative Dispute Resolution (ADR) process, is available in both the informal and formal stages of the sexual orientation discrimination complaint process. Mediation is an informal process in which the employee and management officials meet with a neutral third party, called a mediator. In a meeting or series of meetings, the mediator brings the parties together to reach a mutually acceptable resolution of the dispute. The mediator makes no decisions, but helps the parties agree on a resolution by finding points of general agreement and suggesting various ways that the goals of each party can be met. Mediators are trained to help people carefully consider their goals, interests, and options. When mediation is successful, the parties draft the terms of a mutually acceptable settlement agreement. If your case is appropriate (see When is Mediation Inappropriate, in the DOC EEO Mediation Guide), you have the option of electing ADR, through mediation, during your complaint. To request mediation after you have filed your formal complaint, or to request information about the mediation process, contact the Department's EEO ADR Manager.

Mediation can reduce the time and cost involved in resolving disputes. All mediation discussions are confidential and no record is kept of the discussions.

How can I begin the informal complaint process?

Contact the EEO Officer serving your bureau and ask to be assigned to an EEO Counselor. A list of EEO Officers can be found on OCR's web site at www.doc.gov/ocr/eeoofficers.html.

  • The EEO Counselor will explain the sexual orientation discrimination complaint process, including the employee's rights and responsibilities. He/she will also provide you with a copy of the DoC EEO Mediation Guide.
  • If the issues can also be raised in another forum, the EEO Counselor will advise you if there is a need to elect one forum and of the time limits for filing claims.
  • If the case is appropriate for mediation, the EEO Counselor will provide you with a Pre-Complaint Election Form, which will require you to indicate your decision to elect mediation or counseling.
  • If the case is not appropriate for mediation, counseling will begin.

How does the formal Sexual Orientation Discrimination Complaint Process work?

If your claim is not resolved through counseling or mediation, the counselor will give you notice of your right to file a formal complaint and provide you with a complaint form. You must file your complaint within 15 calendar days of receiving this notice. Provided that you meet the procedural requirements for filing a formal complaint -- including initiating counseling and filing your complaint in a timely manner -- the Department will investigate your claim.

An investigator will collect relevant documents and take testimony from you, management officials, and other witnesses with information about the issues you raise in your complaint. Investigations are generally completed within 180 calendar days of the date you file a complaint. When the investigation is complete, a Report of Investigation (ROI) will be sent to you.

Within 60 calendar days of issuing the Report of Investigation, the Director of OCR will issue a Final Order, including findings on the merits of each matter in the complaint. When discrimination is found, appropriate remedies and relief will be ordered.

What types of issues can be raised in the sexual orientation discrimination complaint process?

You may raise any issue related to your employment, including discrimination in hiring, assignment, termination, and any other terms and conditions of employment.

How can I appeal a Final Order in a Sexual Orientation Discrimination complaint.

If you disagree with the findings in your Final Order, you may appeal to the Department's Chief Financial Officer/Assistant Secretary for Administration. When your Final Order is issued, the Department will send you information about the procedure for filing an appeal.

What recourse do I have if I believe I was subject to discrimination based on both my sexual orientation and another basis covered by the EEO complaint process?

If you believe the action you complain of was taken because of sexual orientation and race, color, sex, national origin, religion, age, or disability, an EEO Counselor can counsel you on both claims. If your issues are not resolved in counseling, you may choose to file complaints under both the EEO complaint process and the sexual orientation discrimination complaint process. You also have the option of raising one or both claims in another applicable process.

For more information about the Sexual Orientation Discrimination Complaint Process.

The Merit Systems Protection Board

In General

What is the Merit Systems Protection Board?

The U.S. Merit Systems Protection Board (MSPB) is an independent agency in the Executive branch of the Federal Government. Its mission includes ensuring that executive branch agencies make employment decisions in accordance with the principles established by the Civil Service Reform Act (CSRA).

Under the CSRA, it is a prohibited personnel practice to take discriminatory action against an employee because of sexual orientation or other matters that are not job-related. A personnel action (such as appointment, promotion, reassignment, suspension, etc.) may need to be involved before there can be a prohibited personnel practice.

How can a claim of sexual orientation discrimination be raised before the MSPB?

A claim of sexual orientation discrimination can be brought before the MSPB in two ways: an MSPB appeal or an Office of Special Counsel complaint.

MSPB Appeal Process

What is the MSPB Appeal Process?

The MSPB appeal process is a procedure that allows specified personnel actions to be appealed directly to the Board. In adjudicating appeals, the MSPB operates like a court.

The procedures that the MSPB follows are contained in Title 5, Code of Federal Regulations, Part 1201.

Who can appeal an agency action to the MSPB?

Employees and others (e.g., applicants for employment, annuitants in retirement cases) who are entitled to appeal specific actions vary depending on the laws and regulations covering the specific action, the appointment of authority, and tenure of the employee.

Generally, employees who may appeal agency actions to the MSPB are:

  • employees in the competitive service who have completed a probationary period; and

  • employees in the excepted service with at least two years of continuous service (one year for veterans).

What actions may be appealed directly to the MSPB?

Most federal employees may appeal certain personnel actions, including:

  • adverse actions:
    • removals,
    • suspensions of more than 14 days,
    • reductions in grade or pay, and
    • furloughs of 30 days or less;
  • performance-based removals or reductions in grade;
  • denials of within-grade increases;
  • certain reduction-in-force (RIF) actions;
  • denials of restoration to duty or reemployment rights;
  • removals from the Senior Executive Service (SES) or failure to be recertified; and
  • Office of Personnel Management determinations in employment suitability and retirement matters.

If you wish to appeal from an agency action, you should contact the MSPB as soon as possible after the action was taken to determine whether it is an action upon which the MSPB may rule.

Can an allegation of constructive discharge be raised with the MSPB?

Yes. Constructive discharge, a type of removal, occurs when an employee is forced to resign or retire due to working conditions that would be intolerable to a reasonable person. A resignation or retirement that results from harassment that is severe or pervasive may be a constructive discharge.

How does the MSPB appeal process work?

First, the MSPB determines whether your appeal is timely and falls within MSPB jurisdiction. If your appeal meets procedural requirements, you have the right to choose between a hearing on the merits of your case or a decision based on the written record.

An administrative judge in the MSPB regional or field office issues a decision. Any party may file a petition for review by the full Merit Systems Protection Board. The MSPB's final decision may be appealed to the United States Court of Appeals for the Federal Circuit.

Who has the burden of proof in appeal proceedings?

The employee who is seeking redress must prove that the appeal falls within the Board's jurisdiction and was timely filed.

If the Board finds that it has jurisdiction, the agency must prove that it was justified in taking the contested personnel action.

If the agency meets its burden of proof, the Board must decide in favor of the agency, unless you prove one of the following:

  • the agency decision was based on a prohibited personnel practice such as sexual orientation discrimination;
  • there was "harmful error" in the agency's procedures; or
  • the agency's decision was not in accordance with the law.
How can I file an MSPB appeal?

You must file your appeal with the Board's regional or field office which has responsibility for the geographic area where your duty station was located at the time the action was taken. Appeal forms can be obtained from the MSPB web site (www.mspb.gov), an MSPB office, or your servicing personnel representative.

What is the time limit for filing an MSPB appeal?

An appeal must be filed within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency's decision, whichever is later. If the 30th day falls on a Saturday, Sunday or federal holiday, the filing deadline is extended to the next working day.

If you and the agency mutually agree in writing to submit your dispute to an alternative dispute resolution (ADR) process, the 30-day filing time limit is automatically extended to 60 days.

If a party fails to timely file an appeal, it will be dismissed as untimely unless a good reason for the delay is shown.

Can I raise an allegation of discrimination based on sexual orientation in an MSPB appeal and a grievance under a negotiated grievance procedure?

No. An employee must choose between using the negotiated grievance procedure or filing an appeal with the Board.

How can I get more information about MSPB appeals?

You may contact the MSPB’s headquarters at
(202) 653–7200 or (800) 209– 8960. (TTY Users may use the
Federal Relay Service (1–800–877–8339) to place calls to
these numbers.) The instructions for filing a MSPB appeal
are available on the MSPB web site at www.mspb.gov.
The instructions are also found at 5 CFR 1200. You may also
contact your servicing human resources office for a copy
of the procedures.

U.S. Office of Special Counsel

What is the U.S. Office of Special Counsel?

The U.S. Office of Special Counsel (OSC) is an independent agency that investigates and prosecutes cases before the MSPB. OSC's mission is to protect employees, former employees, and applicants for employment from prohibited personnel practices and other activities prohibited by civil service law, rule, or regulation.

Individuals may file complaints of prohibited personnel practices, including sexual orientation discrimination, with the OSC.

How does the OSC complaint process work?

OSC has authority to decide which charges it will investigate and prosecute before the MSPB.

If OSC decides to pursue a complaint, it conducts an investigation. All federal employees are required to cooperate fully with OSC investigators.

An employee may ask the Special Counsel to seek to postpone or "stay" a proposed adverse personnel action pending investigation. OSC may grant this request if it has reasonable grounds to believe that the proposed action is the result of a prohibited personnel practice.

Following investigation, OSC may recommend that an agency take corrective action if there is reason to believe that a prohibited personnel practice has occurred, exists or is to be taken. If the agency does not take the recommended action after a reasonable period, OSC may ask the MSPB to order corrective action.

If OSC decides to prosecute a case before the MSPB, the case is heard by the MSPB's Chief Administrative Law Judge, who issues a recommended decision. The parties are given an opportunity to file exceptions to the recommended decision, and the MSPB then issues a final decision in the matter. The MSPB's decision may be appealed to the U.S. Court of Appeals for the Federal Circuit.

The procedures for corrective action by the Special Counsel are set forth in detail in 5 U.S.C. §1214. The procedures for disciplinary actions are contained in 5 U.S.C. §1215.

How can I file a complaint with OSC?

Complaints submitted to OSC must be in writing on an OSC complaint form. You can obtain an OSC complaint form from the OSC web site (www.osc.gov) or by contacting the OSC.

Complaints should be sent to:

Complaints Examining Unit
U.S. Office of Special Counsel
1730 M Street, N.W. Suite 201
Washington, D.C. 20036-4505

What is the time limit for filing a complaint with OSC?

There is no time limit for filing a complaint. However, your complaint can be addressed more effectively when concerned parties are still in the workforce.

How can I get more information about OSC?

OSC has a web site at http://www.osc.gov. You can also call the OSC at:

  • Complaints Examining Unit
    (202) 653-7188;
    (800) 872-9855
  • Public Information
    (202) 653-7984

TTY Users may call these numbers via the Federal Relay Service at (800)877-8339.

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Negotiated Grievance Procedures

What is a negotiated grievance procedure?

A negotiated grievance procedure (NGP) is a procedure established in a contract between a union and employer that provides a process for resolution of grievances by bargaining unit employees.

Employees who are members of 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. Section 7121. The definition of a grievance is contained in 5 U.S.C. Section 7103(a)(9), but generally employees may complain about most matters relating to employment.

Can claims of sexual orientation discrimination be raised in the Department's Negotiated Grievance Procedures?

This depends on the terms of the collective bargaining agreement that covers the bargaining unit in which your position is assigned. Unless specifically excluded from the negotiated grievance procedures by the collective bargaining agreement, a grievance may allege the commission of a prohibited personnel practice, including one related to sexual orientation discrimination. If you are covered by a collective bargaining agreement and you think you have been the victim of sexual orientation discrimination, you should check the collective bargaining agreement’s negotiated grievance procedure to determine if you can file a grievance or you must use another avenue of redress. You may also wish to contact the union that represents you.

Can I use the Sexual Orientation Discrimination Complaint Process if I am covered by a collective bargaining agreement?

Employees who are members of bargaining units may not use
the sexual orientation discrimination complaint process unless their NGP specifically excludes sexual orientation discrimination
or related retaliation.

Can I use the MSPB Appeal Process or file an OSC complaint and use the NGP?

In general, employees much choose one procedure in which
to file for redress. Since employees have a right to file a complaint
to the OSC, the negotiated grievance procedure cannot require
that employees must file a grievance instead; however, in no case
can the employee file both an OSC complaint and a grievance.
Whether or not the employee can file an MSPB appeal instead of
a grievance will depend on the terms of the NGP.

May I have my case heard by an arbitrator through the NGP?

As part of a 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. Employees may not take a case to arbitration on their own.

In arbitration, both parties make a formal presentation of
their issues, evidence, and witness testimony. The arbitrator,
who is a neutral third party, renders a decision on the issues in
the grievance. Under current law, an arbitrator hearing a case
concerning an alleged prohibited personnel practice may:

(a) Stop any personnel action from taking place while he or she is 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.

(b) Order the taking by an agency of certain disciplinary action against the person committing the prohibited personnel practice.

How are arbitration decisions appealed?

The rules for appealing adverse arbitration decisions differ
depending upon the subject of the grievance. It is important
to become informed about the proper appeals route in any
particular circumstance.

How can I get more information?

Contact your union representative for information about your NGP, including whether you may raise your claim in the NGP, and the time limits that apply to you. For additional information about the Federal Labor Relations Authority, see the FLRA web site at http://www.flra.gov or call the agency at (202) 482-6560. TTY Users may use the Federal Relay Service (1-800-877-8339) to place a call to this number.


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Page last updated: Friday, January 24, 2003