Developments at the MSPB: On May 7, 2014, the Merit Systems Protection Board (MSPB) published a new report, Sexual Orientation and the Federal Workforce: Policy and Perception. As the MSPB noted in its press release announcing publication of the report, “The report examines Federal employee perceptions of workplace treatment based on sexual orientation and reviews the evolution and current state of the protections from sexual orientation discrimination in Federal employment.”
In addition to adjudicating various federal sector claims, the MSPB also conducts research studies on the federal workforce and federal personnel issues. While many of the MSPB’s research studies simply analyze survey data from federal employees on workplace issues, this new report went far beyond that format. Specifically, while the report analyzed survey data on perceptions of the federal workforce concerning the prevalence of sexual orientation discrimination in federal agencies, it also provided a detailed history of the treatment of LGBT employees in the civil service, from intrusive investigations and express exclusion of LGBT employees from federal service in the 1950s and 1960s through recent decisions expanding spousal benefits coverage to same-sex marriages and domestic partnerships and construing Title VII to cover LGBT employees’ sex-stereotyping claims.
The report noted that LGBT employees are currently protected from sexual orientation discrimination under the Prohibited Personnel Practices (specifically, 5 U.S.C. 2302(b)(10, 12)), but that those protections are a matter of interpretation rather than their express text, citing to then-Special Counsel Scott Bloch’s rescission of this interpretation during his tenure at OSC. As quoted in the MSPB press release, Chair Grundmann states that “Any confusion surrounding the longstanding policy prohibiting sexual orientation discrimination in the Federal workplace would be resolved by legislation to make that prohibition explicit,” and that “Legislation could also grant Federal employees who allege they are the victims of sexual orientation discrimination access to the same remedies as those who allege discrimination on other bases.”