Classification No.:    1000.31A3

Approval Date:         11/13/2003

Review Date:             11/13/2006

SEXUAL ORIENTATION OR PARENTAL STATUS DISCRIMINATION

1.PURPOSE. To provide information regarding the avenues of redress available to current U.S. Environmental Protection Agency (EPA or Agency) employees and applicants for employment, who believe they have been discriminated against based on their sexual orientation or parental status. This Order supersedes the January 24, 2000 memorandum issued by Ann E. Goode, Director, Office of Civil Rights, and EPA Interim Order 1000.31, Sexual Orientation Discrimination, dated January 18, 2001, and its extensions, 1000.31 A1, dated January 2, 2002 and 1000.31 A2, dated July 31, 2002.

 

2.APPLICABILITY. This Order applies to all EPA employees and applicants for employment, as described below.

 

3. DEFINITIONS. For purposes of this Order:

 

a.“Applicants for employment” shall include individuals who have submitted applications for employment with EPA.

 

b.Employees” shall include individuals who are currently employed by the Agency and former employees who allege discrimination by EPA that arises from their former employment relationship with the Agency.

 

c.“Sexual orientation,” as defined by Office of Personnel Management (OPM) guidance, shall include homosexuality, bisexuality, or heterosexuality.

 

d.“Status as a parent,” as defined by EO 13152, refers to the status of an individual who, with respect to an individual who is under the age of 18 or who is 18 or older but is incapable of self-care because of physical or mental disability, is:

a) a biological parent; b) an adoptive parent; c) a foster parent; d) a stepparent; e) a custodian of a legal ward; f) in loco parentis over such an individual; or

g) actively seeking legal custody or adoption of such an individual.

4. BACKGROUND. The Executive Branch has had a longstanding policy of prohibiting

            discrimination within the Federal civilian workforce. EPA has long been committed to this policy and developed procedures for addressing claims of discrimination within the Agency. In May 1998, EO 13087 was issued prohibiting discrimination based on sexual orientation. In May 2000, EO 13152 was issued prohibiting discrimination based on an individual’s status as a parent. These Executive Orders amended EO 11478 on “Equal Employment Opportunity in the Federal Government.”

 

Executive Orders state Executive Branch policy but do not and cannot create any new rights that are enforceable under Federal statutes, including the Federal laws prohibiting employment discrimination. Therefore, EO 13087 and EO 13152 do not create access to the Federal government’s formal employment discrimination complaint system. For instance, guidance issued by OPM specifically states that EO 13087 does not create a right to proceed before the Equal Employment Opportunity Commission (EEOC). See “Addressing Sexual Orientation Discrimination in Federal Civilian Employment” dated June 1999. Nor does EO 13152 create such a right. Agencies are required, however, to adhere to the policies set forth in Executive Orders, such as EOs 11478, 13087, and 13152.

5. RESPONSIBILITIES.

 

a.The Assistant Administrator for the Office of Administration and Resources Management (OARM) shall provide information about the rights and remedies available to employees and applicants for employment who believe they have been discriminated against based on their sexual orientation or parental status. (This information is set forth in Section 6, “Avenues of Redress,” below.)

 

b.The Director for the Office of Civil Rights (OCR) shall:

 

(1)Advise employees and applicants for employment of their rights and remedies under this order and related Federal statutes.

 

(2) Provide an informal resolution process consisting of counseling and alternative dispute resolution (ADR) to employees and applicants for employment who believe they have been discriminated against based on sexual orientation or parental status. (This resolution process is set forth in Section 6.a., below.)

6. AVENUES OF REDRESS.

 

EPA employees and applicants for employment who believe that they have been discriminated against because of their sexual orientation or parental status may seek redress under the following processes. The first process is informal and may be selected as a first choice, followed by selection of one of the four formal processes. It is important to note, however, that the timeframe for selecting one of the formal processes may be shorter than the timeframe for informal processing. In other words, informal processing does not stop the clock with regard to selecting a formal avenue of redress.

 

            a.         Informal Resolution Process:

 

                        (1)       An aggrieved person must contact OCR or the servicing EEO Office to obtain an EEO counselor within 45 calendar days from the date of the alleged discriminatory action/event. The EEO counselor will attempt to resolve the matter within 30 calendar days.

 

                        (2)       The EEO counselor will inform the aggrieved person of his or her right to

request ADR. If the request for ADR is accepted by the Agency, the aggrieved person will be required to agree to an additional 60 calendar days, which will extend the informal resolution process to 90 calendar days.

 

It is important to note that once the informal resolution process is completed, there are no further rights to process claims of discrimination based on sexual orientation or parental status within the Federal EEO system, governed by the EEOC regulations at 29 C.F.R. Part 1614. There are, however, other avenues of formal redress, set forth in b., below.

            b. Formal Process:

 

(1)An employee who is not covered by a Collective Bargaining Agreement (CBA) may file a grievance alleging discrimination based on sexual orientation or parental status under EPA’s administrative grievance procedure, pursuant to EPA Order 3110.8A. The employee is responsible for contacting his or her servicing Human Resources Office (HRO) for further information regarding timeframes and procedures.

 

                        (2)       An employee who is covered by a CBA may file a grievance based sexual orientation or parental status through the grievance procedures set forth in the appropriate union’s CBA. The employee is responsible for contacting his or her servicing HRO for further information regarding timeframes and procedures.

 

                        (3)       An employee or applicant for employment who believes that an “appealable” personnel action has been taken against him or her based on sexual orientation or parental status may appeal to the U.S. Merit Systems Protection Board (MSPB). “Appealable” personnel actions are set forth in 5 C.F.R. § 1201.3. The period for filing with MSPB is within 30 calendar days after the effective date of such an action or 30 calendar days after the date of receipt of the agency’s decision, whichever is later. This period may be extended an additional 30 calendar days when the employee or applicant for employment and management agree, in writing, to engage in the Agency’s ADR process (5 C.F.R.§ 1201.22(b)).

 

                        (4)       If an employee or applicant for employment believes that a personnel action that is not appealable to MSPB has been taken against him or her based on sexual orientation or parental status, he or she may file a complaint with the Office of Special Counsel (OSC). The procedures for filing may be obtained by contacting OSC.

 

7. POLICY. It is the policy of EPA to provide equal employment opportunity to all employees and applicants for employment. The Agency is committed to providing a workplace free of discrimination, including harassment and retaliation, based on sexual orientation or parental status.

8.         SUNSET/REVIEW DATE. This order will be reviewed three years from the date of approval to ensure that it is meeting its stated purpose.

9. REFERENCES. An EEOC fact sheet is available online at: http://www.eeoc.gov. OPM guidance is available online at: http://www.opm.gov/er/address2/Guide04.htm. MSPB regulations are available online at: http://www.mspb.gov. A list of MSPB “appealable personnel actions,” is available online at: http://frwebgate.access.gpo.gov. OSC guidance is available online at: http://www.osc.gov. EPA’s Administrative Grievance Order is available online at: http://intranet.epa.gov/rmpolicy/ads/orders.