MSPB recommends formal protection for sexual orientation

On Behalf of | May 19, 2014 | Employee Discrimination

When it comes to legal matters, there is a hierarchy of authority. The U.S. Constitution is the source of all other law in this country, which then moves down through acts of Congress that create statutory laws. Some of those laws create administrative agencies and grant those agencies the authority to promulgate regulations. Those regulations may be subject to interpretation by administrative personnel and administrative law judges.

And those interpretations instruct managers in federal agencies how to police their personal policies, and what constitutes a prohibited personal practice (PPP). Those policies are what protect actual federal employees. And those interpretations, while helpful, can be easily reversed, and afford only contingent protection from discrimination.

The Merit Systems Protection Board (MSPB), one of those administrative agencies tasked with the supervision of the Civil Service system, has recommended that Congress enact statutory laws prohibiting discrimination involving sexual orientation for federal employees.

This would change the law from an interpretation by the Office of Personal Management (OPM) of what constitutes discrimination to a mandatory law. The MSPB report notes, “Any ambiguity in the longstanding policy prohibiting sexual orientation discrimination in the Federal workplace would be resolved by legislation making that prohibition explicit.”

The report found explicit discrimination may be less obvious in the federal workplace, but LGBT employees still returned a 6 percent lower satisfaction numbers than heterosexual employees, and some supervisors and employees responded that it was unclear that sexual orientation discrimination was prohibited where they worked.

While the federal government has been something of a leader in prohibiting discrimination against employees on the basis of sexual orientation, federal employees to not have certain rights, such as the ability to bring a discrimination complaint to the Equal Employment Opportunity Commission (EEOC). This is significant, as only Congress can make a change like this to the EEOC’s authority. 

Source:, “Why Congress Might Want to Enact Legislation to Protect LGBT Federal Employees,” Eric Katz, May 8, 2014