From: The Honorable Tammy Duckworth
Bill: H.R. 4668
Safeguard our Nation’s Merit-Based Civil Service Against Discrimination
Cosponsor the Bipartisan Clarification of Federal Employment Protections Act (H.R. 4668)
Supported by the Human Rights Campaign and NTEU
Current Cosponsors: Cummings,
Hanna, Beyer, Cartwright, Cicilline, Clark, Connolly, Hastings, Keating, Levin, Lieu, Lynch, Maloney, Nadler, Norton, Van Hollen, Watson Coleman
We invite you to join as an original cosponsor of the forthcoming Clarification of Federal Employment Protections Act. This straightforward, good government legislation strengthens our country’s merit-based civil service system by modestly amending Federal
law to clearly align with current, and long-standing, Federal policy and practice that deems discrimination against a Federal employee on the basis of sexual orientation or gender identity as constituting a prohibited personnel practice under the Civil Service
Reform Act of 1978.
Our Nation’s bipartisan commitment to establishing a merit-based civil service system dates back to enactment of the seminal Pendleton Act of 1883. Since 1980, the U.S. Office of Personnel Management has interpreted the tenth Prohibited Personnel Practice,
which prohibits discrimination against a Federal employee based on conduct that does not adversely affect job performance, to include sexual orientation. This policy was later expanded to include gender identity as well.
The U.S. Department of Justice has issued similar legal guidance. For example, in 1983, a Reagan Administration appointee, Theodore Olson, then-Assistant Attorney General in the Office of Legal Counsel, issued a memorandum opinion for the associate attorney
general that found, “…a Federal employee in the “excepted” service, may not be terminated solely on the basis of his homosexuality, in the absence of a reasonable showing that his homosexuality has adversely affected his job performance.”
However, despite long-standing Federal policy and practice prohibiting discrimination in the civil service against LGBT Federal employees, recent public statements by certain Presidential candidates raise concern that a future Administration could take advantage of a lack of clarity in Federal statute to dramatically reinterpret the law and reverse Federal civil service policies and practices that prohibit discrimination on the basis of sexual orientation or gender identity.
The U.S. Merit Systems Protection Board both affirmed this problem and identified a potential solution in a May 2014 report to the President and Congress, noting, “Any ambiguity in the longstanding policy prohibiting sexual orientation discrimination in the Federal workplace would be resolved by legislation making that prohibition explicit. Such legislation could grant Federal employees who allege they are victims of sexual orientation discrimination access to the same remedies as those who allege discrimination on other bases.”
Our legislation is similar to bipartisan legislation that was introduced in the House of Representatives during the 109th Congress and favorably reported out of committee by voice vote (H.R. 3128, which the
Congressional Budget Office determined would be deficit neutral).
This prior version of the Clarification of Federal Employment Protections Act was introduced in response to controversial testimony by a former head of the Office of Special Counsel who asserted that Federal law did not explicitly prohibit discrimination against a Federal employee on the basis of sexual orientation.
Congress should proactively prevent such discriminatory policy by clarifying and reaffirming that discriminating against a Federal employee based on sexual orientation or gender identity constitutes a prohibited personnel practice under Federal law. The
Clarification of Federal Employment Protections Act would achieve this goal.
If you have any questions about the Clarification of Federal Employment Protections Act, or wish to join as a cosponsor, please contact Benjamin Rhodeside with Congresswoman Tammy Duckworth (IL-08) at
Tammy Duckworth Elijah Cummings Richard Hanna
Member of Congress Member of Congress Member of Congress