Developments at the OSC: The U.S. Office of Special Counsel (OSC) recently announced the results in two major cases involving protections for LGBT employees in the federal workforce. OSC's jurisdiction includes enforcing the rules against prohibited personnel practices (PPPs); one of the PPPs--codified at 5 U.S.C. § 2302(b)(10)--prohibits discrimination "on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others," which has been interpreted to include discrimination based on sexual orientation or gender identity.
In the first case, OSC announced on October 16, 2014, that an OSC investigation had caused the Army to revise its regulations. Specifically, the Army's regulations concerning whether or not to disqualify an individual from holding a sensitive position (AR 380-67) were changed so that the Army can no longer count an employee's sexual orientation against them in the disqualification decision. The regulatory change is extremely important, given the difficulty in appealing removals based on denial of sensitive position access under the Federal Circuit's Northover decision, as previously analyzed in this blog and in Passman & Kaplan's Federal Legal Corner. OSC's investigation stemmed from the complaint of a civilian employee who was terminated because his supervisors and coworkers discovered his anonymous online posts mentioning his sexual orientation; OSC announced that the employee's personal claims were favorably settled, and that the Army would be conducting sensitivity training.
In the second case, OSC announced that it had found that the Army had discriminated against a transgender employee. OSC's investigative report found that the Army had discriminated against the employee after she had transitioned from male to female, potentially constituting a violation of section 2302(b)(10) as well as a violation of Title VII. Interestingly, OSC's report delved into the Title VII discrimination claims; normally, OSC regulations (5 C.F.R. § 1810.1) call for OSC to not investigate cases with EEOC jurisdiction in cases where OSC and EEOC jurisdiction overlap. To resolve the complaint, the Army agreed to order sensitivity training.
These cases represent the striking change at OSC under the current Special Counsel in the area of protections for LGBT employees. By contrast, the prior Special Counsel had actually ordered references to sexual orientation protections under 5 U.S.C. § 2302(b)(10) removed from the OSC website, as discussed in this blog.