81 FR 55148 - Federal Management Regulation; Nondiscrimination Clarification in the Federal Workplace
GENERAL SERVICES ADMINISTRATION Federal Register Volume 81, Issue 160 (August 18, 2016)
Federal Register Volume 81, Issue 160 (August 18, 2016)
| Page Range | 55148-55149 | |
| FR Document | 2016-19450 |
[Federal Register Volume 81, Number 160 (Thursday, August 18, 2016)] [Rules and Regulations] [Pages 55148-55149] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-19450] [[Page 55148]] ======================================================================= ----------------------------------------------------------------------- GENERAL SERVICES ADMINISTRATION 41 CFR Part 74 [Notice-MA-2016-05; Docket No: 2016-0002; Sequence No. 19] Federal Management Regulation; Nondiscrimination Clarification in the Federal Workplace AGENCY: Office of Government-wide Policy (OGP), General Services Administration (GSA). ACTION: Issuance of bulletin. ----------------------------------------------------------------------- SUMMARY: In recent years, a number of Federal agencies, including the Equal Employment Opportunity Commission (EEOC), the Department of Education (ED), and the Department of Justice (DOJ), have all interpreted prohibitions against sex discrimination under various Federal civil rights laws and regulations. GSA has reviewed these interpretations and agency determinations, and is issuing a Federal Management Regulation (FMR) bulletin to clarify that the nondiscrimination requirement includes gender identity as a prohibited basis of discrimination under the existing prohibition of sex discrimination for any facility under the jurisdiction, custody, or control of GSA. DATES: Effective date: August 18, 2016. FOR FURTHER INFORMATION CONTACT: Mr. Dennis Oden, Director, Civil Rights Programs Division (AKB), Office of Civil Rights, 202-417-5711, or by email at [email protected]. SUPPLEMENTARY INFORMATION: The EEOC, ED, and DOJ have all interpreted prohibitions against sex discrimination under various Federal civil rights laws and regulations, including Title VII of the Civil Rights Act of 1964 (as amended) and Title IX of the Education Amendments Act of 1973 (as amended), to encompass discrimination based on gender identity, including transgender status. As required in the FMR 41 CFR part 74, section 102-74.445, all Federal agencies occupying property operated under, or subject to, the authorities of GSA must not discriminate by segregation or otherwise against any person or persons because of race, creed, religion, age, sex, color, disability, or national origin in furnishing, or by refusing to furnish to such person or persons the use of any facility of a public nature, including all services, privileges, accommodations, and activities provided on the property. Several Federal agencies with enforcement authority over Federal civil rights laws, including the EEOC, ED, and DOJ, have interpreted prohibitions against sex discrimination to include discrimination on the basis of gender identity, including transgender status. The attached bulletin clarifies that the prohibition against sex discrimination contained within the FMR includes discrimination due to gender identity, and is consistent with the legal interpretations issued by other Federal agencies, including the EEOC, ED, and DOJ, as well as guidance issued by the Office of Personnel Management (OPM). Dated: August 8, 2016. Denise Turner-Roth, Administrator. General Services Administration Washington, DC 20417 August 8, 2016 GSA Bulletin 2016-B1 Real Property Management TO: Heads of Federal Agencies SUBJECT: Clarification of Nondiscrimination in the Federal Workplace. 1. What is the purpose of this bulletin? This bulletin clarifies the nondiscrimination clause in the Federal Management Regulation (FMR), 41 CFR part 74 Facility Management for space under the jurisdiction, custody, or control of GSA regarding prohibitions against sex discrimination. 2. When does this bulletin expire? This bulletin contains information of a continuing nature and will remain in effect until canceled. 3. What is the background? a. Under the FMR 41 CFR part 74 section 102-74.445, Federal agencies occupying space under the jurisdiction, custody, or control of GSA must not discriminate by segregation or otherwise against any person or persons because of race, creed, religion, age, sex, color, disability, or national origin in furnishing or by refusing to furnish to such person or persons the use of any facility of a public nature, including all services, privileges, accommodations, and activities provided on the property. The prohibition against unlawful discrimination derives from Federal laws passed by the United States Congress and enforced by specific Federal agencies. b. Title VII, Civil Rights Act of 1964 (Pub. L. 88-352) as amended (42 U.S.C. 2000e, et seq.), and its implementing regulations for Federal agencies at 29 CFR part 1614 Federal Sector Equal Employment Opportunity, makes it illegal to discriminate against someone in employment on the basis of race, color, religion, national origin, or sex. The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) have statutory authority for the enforcement of Title VII. In 2012, the EEOC clarified in ``Macy v. Dep't of Justice,'' EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), that discrimination based on transgender status is sex discrimination in violation of Title VII. The EEOC further ruled in ``Lusardi v. Dep't of the Army,'' EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), that denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination, that an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure, and an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it). The EEOC also clarified in ``Baldwin v. Dep't of Transportation,'' EEOC Appeal No. 0120133080 (July 15, 2015) that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII. This EEOC appeal is available at https://www.eeoc.gov/decisions/0120133080.pdf. The EEOC's technical assistance regarding application of these rulings can be found at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. c. Likewise, DOJ, which is responsible for the overall enforcement authority for Federal civil rights laws, issued a memorandum ``Treatment of Transgender Employment Discrimination Claims,'' December 15, 2015 under Title VII of the Civil Rights Act of 1964 asserting the Department's position that Title VII's prohibitions against sex discrimination included discrimination based on gender identity. This memorandum is available at https://www.justice.gov/file/188671/download. d. Title IX of the Education Amendments of 1972 (Pub. L. 92-318), as amended, (20 U.S.C 1681, et seq.), and its implementing regulations at 28 CFR part 54 and 34 CFR part 106, prohibits discrimination under any education program or activity receiving Federal financial assistance. The U.S. Department of Education (ED) has statutory authority for the enforcement of Title IX. ED and DOJ on May 13, 2016 issued joint guidance to covered entities explaining that the prohibitions against [[Page 55149]] sex discrimination under Title IX includes discrimination based on gender identity, which encompasses discrimination based on transgender status. The guidance explains that ED and DOJ treat an individual's gender identity as the individual's sex for purposes of Title IX and its implementing regulations. This guidance is available at www.ed.gov/ocr/letters/colleague-201605-title-ix-transgender.pdf. e. The U.S. Office of Personnel Management (OPM) has also provided guidance to Federal agencies about the treatment of transgender individuals. In a document entitled ``Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace,'' OPM notes that ``transgender'' refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The OPM Guidance further explains that the term ``transgender woman'' typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, OPM provides that the term ``transgender man'' typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. Lastly, OPM recognizes that a person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman. The OPM guidance is available at https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/addressing-sexual-orientation-and-gender-identity-discrimination-in-federal-civilian-employment.pdf. 4. What is nondiscrimination on property under the jurisdiction, custody, or control of GSA? a. Consistent with the interpretations issued by the EEOC, ED, DOJ, and OPM, the prohibition against sex discrimination in the Federal Management Regulation 41 CFR part 74 section 102-74.445 also prohibits discrimination due to gender identity, which includes discrimination based on an individual's transgender status. b. Federal agencies occupying space under the jurisdiction, custody, or control of GSA must allow individuals to use restroom facilities and related areas consistent with their gender identity. As consistent with guidance by DOJ and ED, the self-identification of gender identity by any individual is sufficient to establish which restroom or other single-sex facilities should be used. As noted by ED, EEOC, DOJ and OPM, transgender individuals do not have to be undergoing or have completed any medical procedure, nor can they be required to show proof of surgery to be treated in accordance with their gender identity and obtain access to the restroom corresponding with their gender identity. Further, Federal agencies may not restrict only transgender individuals to only use single-occupancy restrooms, such as family or accessible facilities open to all genders. However, Federal agencies may make individual-user options available to all individuals who voluntarily seek additional privacy. 5. Who should I contact for further information or direct questions regarding this bulletin? Further information regarding this bulletin may be obtained from the GSA Office of Civil Rights by sending an email message to Mr. Dennis Oden, Director, Civil Rights Program Division at [email protected] or by calling 202-417-5711. Dated: August 8, 2016. Denise Turner-Roth, Administrator. [FR Doc. 2016-19450 Filed 8-17-16; 8:45 am] BILLING CODE 6820-14-P
![55148 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations
GENERAL SERVICES and DOJ, have interpreted prohibitions Opportunity Commission (EEOC) and
ADMINISTRATION against sex discrimination to include the U.S. Department of Justice (DOJ)
discrimination on the basis of gender have statutory authority for the
41 CFR Part 74 identity, including transgender status. enforcement of Title VII. In 2012, the
[Notice–MA–2016–05; Docket No: 2016–
The attached bulletin clarifies that the EEOC clarified in ‘‘Macy v. Dep’t of
0002; Sequence No. 19] prohibition against sex discrimination Justice,’’ EEOC Appeal No. 0120120821,
contained within the FMR includes 2012 WL 1435995 (Apr. 12, 2012), that
Federal Management Regulation; discrimination due to gender identity, discrimination based on transgender
Nondiscrimination Clarification in the and is consistent with the legal status is sex discrimination in violation
Federal Workplace interpretations issued by other Federal of Title VII. The EEOC further ruled in
agencies, including the EEOC, ED, and ‘‘Lusardi v. Dep’t of the Army,’’ EEOC
AGENCY: Office of Government-wide DOJ, as well as guidance issued by the Appeal No. 0120133395, 2015 WL
Policy (OGP), General Services Office of Personnel Management (OPM). 1607756 (Mar. 27, 2015), that denying
Administration (GSA). an employee equal access to a common
Dated: August 8, 2016.
ACTION: Issuance of bulletin. Denise Turner-Roth, restroom corresponding to the
employee’s gender identity is sex
SUMMARY: In recent years, a number of Administrator.
discrimination, that an employer cannot
Federal agencies, including the Equal General Services Administration condition this right on the employee
Employment Opportunity Commission undergoing or providing proof of
(EEOC), the Department of Education Washington, DC 20417
surgery or any other medical procedure,
(ED), and the Department of Justice August 8, 2016 and an employer cannot avoid the
(DOJ), have all interpreted prohibitions GSA Bulletin 2016–B1 requirement to provide equal access to
against sex discrimination under a common restroom by restricting a
various Federal civil rights laws and Real Property Management transgender employee to a single-user
regulations. GSA has reviewed these TO: Heads of Federal Agencies restroom instead (though the employer
interpretations and agency SUBJECT: Clarification of can make a single-user restroom
determinations, and is issuing a Federal Nondiscrimination in the Federal available to all employees who might
Management Regulation (FMR) bulletin Workplace. choose to use it). The EEOC also
to clarify that the nondiscrimination 1. What is the purpose of this clarified in ‘‘Baldwin v. Dep’t of
requirement includes gender identity as bulletin? This bulletin clarifies the Transportation,’’ EEOC Appeal No.
a prohibited basis of discrimination nondiscrimination clause in the Federal 0120133080 (July 15, 2015) that a claim
under the existing prohibition of sex Management Regulation (FMR), 41 CFR of discrimination on the basis of sexual
discrimination for any facility under the part 74 Facility Management for space orientation necessarily states a claim of
jurisdiction, custody, or control of GSA. under the jurisdiction, custody, or discrimination on the basis of sex under
DATES: Effective date: August 18, 2016. control of GSA regarding prohibitions Title VII. This EEOC appeal is available
against sex discrimination. at https://www.eeoc.gov/decisions/
FOR FURTHER INFORMATION CONTACT: Mr.
2. When does this bulletin expire? 0120133080.pdf. The EEOC’s technical
Dennis Oden, Director, Civil Rights This bulletin contains information of a
Programs Division (AKB), Office of Civil assistance regarding application of these
continuing nature and will remain in rulings can be found at https://
Rights, 202–417–5711, or by email at effect until canceled.
dennis.oden@gsa.gov. www.eeoc.gov/eeoc/newsroom/wysk/
3. What is the background? enforcement_protections_lgbt_
SUPPLEMENTARY INFORMATION: The a. Under the FMR 41 CFR part 74 workers.cfm.
EEOC, ED, and DOJ have all interpreted section 102–74.445, Federal agencies c. Likewise, DOJ, which is responsible
prohibitions against sex discrimination occupying space under the jurisdiction, for the overall enforcement authority for
under various Federal civil rights laws custody, or control of GSA must not Federal civil rights laws, issued a
and regulations, including Title VII of discriminate by segregation or otherwise memorandum ‘‘Treatment of
the Civil Rights Act of 1964 (as against any person or persons because of Transgender Employment
amended) and Title IX of the Education race, creed, religion, age, sex, color, Discrimination Claims,’’ December 15,
Amendments Act of 1973 (as amended), disability, or national origin in 2015 under Title VII of the Civil Rights
to encompass discrimination based on furnishing or by refusing to furnish to Act of 1964 asserting the Department’s
gender identity, including transgender such person or persons the use of any position that Title VII’s prohibitions
status. facility of a public nature, including all against sex discrimination included
As required in the FMR 41 CFR part services, privileges, accommodations, discrimination based on gender identity.
74, section 102–74.445, all Federal and activities provided on the property. This memorandum is available at
agencies occupying property operated The prohibition against unlawful https://www.justice.gov/file/188671/
under, or subject to, the authorities of discrimination derives from Federal download.
GSA must not discriminate by laws passed by the United States d. Title IX of the Education
segregation or otherwise against any Congress and enforced by specific Amendments of 1972 (Pub. L. 92–318),
person or persons because of race, Federal agencies. as amended, (20 U.S.C 1681, et seq.),
creed, religion, age, sex, color, b. Title VII, Civil Rights Act of 1964 and its implementing regulations at 28
disability, or national origin in (Pub. L. 88–352) as amended (42 U.S.C. CFR part 54 and 34 CFR part 106,
furnishing, or by refusing to furnish to 2000e, et seq.), and its implementing prohibits discrimination under any
such person or persons the use of any regulations for Federal agencies at 29
rmajette on DSK2TPTVN1PROD with RULES
education program or activity receiving
facility of a public nature, including all CFR part 1614 Federal Sector Equal Federal financial assistance. The U.S.
services, privileges, accommodations, Employment Opportunity, makes it Department of Education (ED) has
and activities provided on the property. illegal to discriminate against someone statutory authority for the enforcement
Several Federal agencies with in employment on the basis of race, of Title IX. ED and DOJ on May 13, 2016
enforcement authority over Federal civil color, religion, national origin, or sex. issued joint guidance to covered entities
rights laws, including the EEOC, ED, The U.S. Equal Employment explaining that the prohibitions against
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![Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations 55149
sex discrimination under Title IX have to be undergoing or have status of a community can be obtained
includes discrimination based on completed any medical procedure, nor from FEMA’s Community Status Book
gender identity, which encompasses can they be required to show proof of (CSB). The CSB is available at http://
discrimination based on transgender surgery to be treated in accordance with www.fema.gov/fema/csb.shtm.
status. The guidance explains that ED their gender identity and obtain access DATES: The effective date of each
and DOJ treat an individual’s gender to the restroom corresponding with their community’s scheduled suspension is
identity as the individual’s sex for gender identity. Further, Federal the third date (‘‘Susp.’’) listed in the
purposes of Title IX and its agencies may not restrict only third column of the following tables.
implementing regulations. This transgender individuals to only use FOR FURTHER INFORMATION CONTACT: If
guidance is available at www.ed.gov/ single-occupancy restrooms, such as you want to determine whether a
ocr/letters/colleague-201605-title-ix- family or accessible facilities open to all particular community was suspended
transgender.pdf. genders. However, Federal agencies may on the suspension date or for further
e. The U.S. Office of Personnel make individual-user options available information, contact Patricia Suber,
Management (OPM) has also provided to all individuals who voluntarily seek Federal Insurance and Mitigation
guidance to Federal agencies about the additional privacy. Administration, Federal Emergency
treatment of transgender individuals. In 5. Who should I contact for further Management Agency, 400 C Street SW.,
a document entitled ‘‘Guidance information or direct questions Washington, DC 20472, (202) 646–4149.
Regarding the Employment of regarding this bulletin? Further SUPPLEMENTARY INFORMATION: The NFIP
Transgender Individuals in the Federal information regarding this bulletin may enables property owners to purchase
Workplace,’’ OPM notes that be obtained from the GSA Office of Civil Federal flood insurance that is not
‘‘transgender’’ refers to people whose Rights by sending an email message to
gender identity and/or expression is otherwise generally available from
Mr. Dennis Oden, Director, Civil Rights private insurers. In return, communities
different from the sex assigned to them Program Division at dennis.oden@
at birth (e.g. the sex listed on an original agree to adopt and administer local
gsa.gov or by calling 202–417–5711. floodplain management measures aimed
birth certificate). The OPM Guidance
further explains that the term Dated: August 8, 2016. at protecting lives and new construction
‘‘transgender woman’’ typically is used from future flooding. Section 1315 of
Denise Turner-Roth,
to refer to someone who was assigned the National Flood Insurance Act of
Administrator. 1968, as amended, 42 U.S.C. 4022,
the male sex at birth but who identifies
as a female. Likewise, OPM provides [FR Doc. 2016–19450 Filed 8–17–16; 8:45 am] prohibits the sale of NFIP flood
that the term ‘‘transgender man’’ BILLING CODE 6820–14–P
insurance unless an appropriate public
typically is used to refer to someone body adopts adequate floodplain
who was assigned the female sex at management measures with effective
birth but who identifies as male. Lastly, DEPARTMENT OF HOMELAND enforcement measures. The
OPM recognizes that a person does not SECURITY communities listed in this document no
need to undergo any medical procedure longer meet that statutory requirement
to be considered a transgender man or Federal Emergency Management for compliance with program
a transgender woman. The OPM Agency regulations, 44 CFR part 59.
guidance is available at https:// Accordingly, the communities will be
www.opm.gov/policy-data-oversight/ 44 CFR Part 64 suspended on the effective date in the
diversity-and-inclusion/reference- third column. As of that date, flood
[Docket ID FEMA–2016–0002; Internal insurance will no longer be available in
materials/addressing-sexual- Agency Docket No. FEMA–8451]
orientation-and-gender-identity- the community. We recognize that some
discrimination-in-federal-civilian- Suspension of Community Eligibility of these communities may adopt and
employment.pdf. submit the required documentation of
4. What is nondiscrimination on AGENCY: Federal Emergency legally enforceable floodplain
property under the jurisdiction, custody, Management Agency, DHS. management measures after this rule is
or control of GSA? ACTION: Final rule. published but prior to the actual
a. Consistent with the interpretations suspension date. These communities
issued by the EEOC, ED, DOJ, and OPM, SUMMARY: This rule identifies will not be suspended and will continue
the prohibition against sex communities where the sale of flood to be eligible for the sale of NFIP flood
discrimination in the Federal insurance has been authorized under insurance. A notice withdrawing the
Management Regulation 41 CFR part 74 the National Flood Insurance Program suspension of such communities will be
section 102–74.445 also prohibits (NFIP) that are scheduled for published in the Federal Register.
discrimination due to gender identity, suspension on the effective dates listed In addition, FEMA publishes a Flood
which includes discrimination based on within this rule because of Insurance Rate Map (FIRM) that
an individual’s transgender status. noncompliance with the floodplain identifies the Special Flood Hazard
b. Federal agencies occupying space management requirements of the Areas (SFHAs) in these communities.
under the jurisdiction, custody, or program. If the Federal Emergency The date of the FIRM, if one has been
control of GSA must allow individuals Management Agency (FEMA) receives published, is indicated in the fourth
to use restroom facilities and related documentation that the community has column of the table. No direct Federal
areas consistent with their gender adopted the required floodplain financial assistance (except assistance
identity. As consistent with guidance by management measures prior to the pursuant to the Robert T. Stafford
rmajette on DSK2TPTVN1PROD with RULES
DOJ and ED, the self-identification of effective suspension date given in this Disaster Relief and Emergency
gender identity by any individual is rule, the suspension will not occur and Assistance Act not in connection with a
sufficient to establish which restroom or a notice of this will be provided by flood) may be provided for construction
other single-sex facilities should be publication in the Federal Register on a or acquisition of buildings in identified
used. As noted by ED, EEOC, DOJ and subsequent date. Also, information SFHAs for communities not
OPM, transgender individuals do not identifying the current participation participating in the NFIP and identified
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Document Created: 2016-08-17 23:45:59
Document Modified: 2016-08-17 23:45:59
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Issuance of bulletin. | |
| Contact | Mr. Dennis Oden, Director, Civil Rights Programs Division (AKB), Office of Civil Rights, 202-417-5711, or by email at [email protected] | |
| FR Citation | 81 FR 55148 |
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