Just recently, some 40 organizations in Colorado penned a letter to U.S. Secretary of the Interior David Bernhardt contending that the department removed “sexual orientation” from anti-discrimination guidelines, a move that the authors argued “could have a chilling effect on current LGBTQ employees seeking to report discrimination internally.”
These groups are completely misrepresenting the facts, as the department has not only clarified but, in fact, expanded such protections beyond what was in place during the Obama administration.
These groups’ misrepresentation stems from inaccurate press coverage in HuffPost, which, with similar hyperbole, described a routine administrative clarification as threatening to lead to “more workplace discrimination.” Because these accusations are so grossly false and potentially damaging to the rights of all the department’s employees, I feel a need to clarify.
As the articles note, the Department of the Interior’s “Ethics Guide for DOI Employees,” issued under the Trump administration, states that employees “shall adhere to all laws and regulations that provide equal opportunities for all Americans, regardless of race, color, religion, sex, national origin, age, or handicap.” This is one of the 14 principles that since 1989 have formed the basis for the standards of ethical conduct for all federal employees, and which are codified in federal regulation.
In 2009, while purportedly relying on the same legal authorities, the Obama administration changed the ethics manual by removing the word “sex” and inserting in its place “gender” and “sexual orientation.” While this change may have seemed politically appealing, it provided no new legal protections and did not reflect what the regulation actually says. Rather than using inconsistent, purely symbolic rhetoric, the department’s 2017 ethics guide quotes the relevant legal text directly.
But in addition to clarifying that the department’s policy on discrimination remains fully consistent with federal law, then-Deputy Secretary Bernhardt took additional steps to protect all Interior Department employees, including lesbian, gay, bisexual, and transgender employees, from abusive behavior at work. Personnel Bulletin 18-01, issued in March 2018, for the first time shields department employees from harassing conduct based on the employee’s sexual orientation as well as other protected bases such as race, marital status, and political affiliation. This policy not only gives Interior employees greater protection from abuse than provided for under federal employment law, it in fact far exceeds anything that was done at the department in the Obama administration or other previous administrations.
The HuffPost article in question mentions that a case currently pending before the Supreme Court calls into question whether the 1964 law’s protections for “sex” includes sexual orientation. But that’s part of the wisdom of Bernhardt’s new personnel policy. It guarantees that, no matter how that case is decided, nothing will change — Interior’s employees will still be protected from harassing conduct at work based on sexual orientation.
The Department of the Interior celebrates the efforts of its dedicated public servants, who are doing important work for the American people. It is a disservice to them to imply that the department would remove protections for its lesbian, gay, bisexual, or transgender employees, or any others. The truth is that the department has a strong policy against all forms of harassing conduct, including on the basis of sexual orientation.
We are proud that in this administration, the Interior Department’s employees enjoy greater confidence than ever before that they are and will be protected from discrimination and harassment based on sexual orientation. Some people would rather score political points or create controversy than celebrate our employees’ increased ability to do their jobs confidently, free from discrimination.
Daniel H. Jorjani serves as solicitor of the U.S. Department of the Interior.
