Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘OPM’

Transgender guidance disappears from Office of Personnel Management website

Friday, November 23rd, 2018

Under President Obama, the Office of Personnel Management (OPM), which oversees all federal employees, issued detailed guidance protecting transgender people in the workforce. As of Friday, that guidance has disappeared and been replaced by generic language with no content specific to transgender people.

The previous “Gender Identity Guidance” page, which was still live as of earlier this week, laid out definitions for terms related to transgender identities, and outlined specific expectations for respecting transgender employees. These included ensuring that trans workers could dress according to their gender identity, that they were called by their preferred names and pronouns, and that they were allowed to use restrooms and locker rooms consistent with their gender identity.

“Transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated for use by a particular gender,” the guidance stated. “Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, located at an unreasonable distance from the employee’s work station, or that are inconsistent with the employee’s gender identity.”

On the new site, that language and any reference to transgender people is now gone, although the page does still state that discrimination on the basis of gender identity is prohibited — consistent with an executive order President Obama issued that is still in effect.

Gone, however, are the detailed definitions for the terms “gender identity,” “transgender,” “gender non-conforming,” and “transition.” Specific references to confidentiality related to transitioning have been replaced with generic language about medical privacy. The page’s dress code language no longer provides reassurances that employees will be allowed to dress consistent with their gender identity.

Before:

After:

Two vital sections have been erased without a trace: both the section on respecting employees’ names and pronouns and the section addressing access to “sanitary and related facilities.” There is no longer any guidance whatsoever to ensure that trans people are respected according to their gender identity in the federal government. Should a manager have questions about how to respond when an employee comes out as transgender, they will find no answers on OPM’s page.

The changes to the page came without any announcement or notice.

From the beginning of the Trump administration, federal agencies have increasingly erased content related to LGBTQ people or gender more broadly. The day after President Trump’s inauguration, the White House website discarded its page dedicated to LGBTQ rights and the Labor Department also removed a report on LGBTQ workers’ rights.

A few months later, questions that would help identify LGBTQ people in data collection were erased from two important national surveys. This past July, the Department of Health and Human Services removed language on sex discrimination from its website, and in October, it scrapped “gender” from its civil rights page. Recent reports have even suggested that the administration is trying to remove references to “gender” in United Nations documents.

While these unannounced website changes have been somewhat inconspicuous, the administration’s opposition to trans rights has been anything but subtle. A memo leaked in October laid out the administration’s plans to completely erase trans people from any recognition under any agency of the federal government. People would be defined solely by the sex they were assigned at birth, subject to genetic testing.

This article was originally published at ThinkProgress on November 23, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.”

News from Congress: VA Employees' Civil Service Protections Slashed

Wednesday, July 12th, 2017

On June 23, 2017, the President signed into law Pub.L. 115-41.  The new statute reduces civil service protections for employees of the Department of Veterans Affairs (DVA).

Pub.L. 115-41 renews the push to cut back VA civil service protections, after the prior attempt under the last Administration saw adverse actions reversed at the Merit Systems Protection Board (MSPB) and portions of the statute struck down as unconstitutional.

Pub.L. 115-41 is more expansive than the prior statute.  Instead of just applying to Senior Executive Service (SES) employees at DVA, the statute applies to all DVA civil service employees, but different rules apply to different categories of employees.

SES employees and certain other individuals in executive or administrative positions can be removed, suspended, reprimanded, involuntarily reassigned or demoted by the Secretary, with notice and opportunity to respond to the proposal limited to 7 business days and the overall period from proposal to decision limited to 15 business days.  Affected DVA employees lose MSPB appeal rights.  Instead, adverse actions taken under this mechanism may solely be grieved to a new DVA internal grievance process, with a final decision due within 21 days.  Final decisions by DVA are then subject to judicial review.

Other DVA employees also suffer cuts to their civil service protections.  Under Pub.L. 115-41, affected employees may receive proposed adverse actions from the Secretary, with notice and opportunity to respond to the proposal limited to 7 business days and the overall period from proposal to decision limited to 15 business days.  MSPB appeal rights are retained, but the appeal deadline is cut to 10 business days.  The MSPB administrative judge must issue a final decision within 180 days.  The VA’s burden of proof to support its charges is cut to mere substantial evidence.  The MSPB may not mitigate to a lesser penalty (it must uphold the penalty or reverse entirely).

Pub.L. 115-41 moves into statute the DVA whistleblower office created by Executive Order 13,793.  The Secretary cannot remove, demote or suspend non-executive whistleblowers with active cases before the Office of Special Counsel (OSC) or the DVA whistleblower office without permission of the relevant whistleblower office.

Pub.L. 115-41 also allows the Secretary to disallow retirement service credit for DVA employees who are convicted of felonies.  Pub.L. 115-41 also allows the Secretary to claw back bonuses, awards and relocation expenses paid to DVA employees under certain circumstances.

This blog was originally published by The Attorneys of Passman & Kaplan, PC on July 7, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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