Employment Discrimination in the Federal Government

Federal employees are protected from employment discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, Section 501 of the Rehabilitation Act of 1973, the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, and the Genetic Information Nondiscrimination Act of 2008.

These laws are enforced by the Equal Employment Opportunity Commission. Generally speaking, under those laws it is illegal to discriminate in any aspect of employment, including: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and disability leave; or other terms and conditions of employment.

Employment discrimination practices under those laws include:

  • harassment on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, disability, genetic information or age (as defined by the ADEA);
  • retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
  • employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and
  • denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.

Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group. The law prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

Rights grounded in civil service laws under Title 5, U.S. Code include those restrictions plus prohibitions against discrimination on the basis of marital status, political affiliation, sexual orientation, labor organization affiliation or non-affiliation, status as a parent, or any other non-merit-based factor, as well as retaliation for exercising rights under the pertinent laws.

Gender Identity, Age Covered Under Employment Discrimination Rules

Executive Order 13672 of 2014 specified that federal workplace protections against discrimination extend to gender identity. EEOC already had interpreted the Civil Rights Act to protect federal employees from discrimination on the basis of gender identity as a form of sex discrimination. EEOC similarly treats discrimination on the basis of pregnancy or pregnancy-related conditions as a form of sex discrimination.

The Age Discrimination in Employment Act protects federal employees against workplace reprisals for filing age discrimination complaints. However, federal employees alleging age discrimination or reprisal for asserting age discrimination are not eligible to receive compensatory damages for pain and suffering and cannot receive attorney fees in the administrative process.

Public Law 111-2 of 2009 allows employees to challenge pay discrimination so long as the employee has received a discriminatorily-reduced paycheck with the applicable filing deadline. As a result, employees who might only have learned about discriminatory disparities in pay long after the pay-setting decision occurred may be able to seek a remedy through the EEO process.

Amendments to the Rehabilitation Act made the Americans with Disabilities Act applicable to federal employees. Under the ADA, the determination of whether an individual has a disability is made on a case-by-case basis. The ADA limits the medical information that an employer can seek from a job applicant. An employer may not ask questions about an applicant’s medical condition or require an applicant to take a medical examination before it makes a conditional job offer. After making a job offer, an employer may ask questions about an applicant’s health and may require a medical examination as long as it treats all applicants the same.

The ADA requires employers to provide adjustments or modifications to enable people with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending on the needs of an individual with a disability.

An amendment to the ADA in 2008 retained the act’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changed the way that these statutory terms are to be interpreted, for example by expanding the definition of “major life activities” covered, and providing that an impairment is covered unless it is transitory and minor.

Under the Genetic Information Nondiscrimination Act, it is illegal to discriminate against employees or applicants because of genetic information, which includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history). It is also illegal to harass a person because of his or her genetic information; harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision.

Agencies must ensure that they afford a non-discriminatory working environment to employees irrespective of their gender identity or changing from living as one gender to the other. This affects issues involving privacy, agency communications, insurance and dress codes, among others.

See www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance.

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