The EEOC looks to protect employees who are subject to discrimination as defined by Title VII of the Civil Rights Act. The title “prohibits employment discrimination based on race, color, religion, sex and national origin.” Osterberg suggested that the LOC, in its handling of discrimination claims, also “adheres to Title VII.”
It does not bar discrimination based on sexual orientation.
“You have a right to be free from same-sex harassment, but you do not have a right based on sexual orientation as far as the EEOC is concerned,” said Debra Katz, a lawyer who specializes in employment discrimination and sexual harassment, including such cases within Congressional support agencies. “[The statement] ‘I was discriminated against because I’m gay’ would not be covered under federal discrimination law under Title VII.”
“There is no explicit protection against discrimination based on sexual orientation in Title VII, which is a huge problem,” said Josh Block, a staff attorney with the American Civil Liberties Union LGBT Project, adding that it underscores the need for Congress to pass the Employment Non-Discrimination Act, which would make it illegal to discriminate against employees for being gay, lesbian, bisexual or transgender.
However, there could be legal precedent to aid TerVeer’s case.
In 2008, the U.S. District Court for the District of Columbia ruled that the LOC was in violation of federal law prohibiting sex discrimination when it rescinded a job offer to an applicant who was revealed to be undergoing a transition from male to female.
In TerVeer’s EEOC complaint, he also alleges discrimination based on his gender and his religious beliefs, which Simeone said went hand in hand with the discrimination his client endured for his sexual orientation. Those types of discrimination are covered by Title VII.
“We understand that federal law is what it is towards sexual orientation, but we think we have strong claims,” said Simeone, who will appear with TerVeer at a news conference Wednesday in front of the Library of Congress Madison Building.
Simeone also said that the LOC has its own internal policy regarding sexual orientation discrimination, or at least had one when TerVeer worked there.
Osterberg would not comment on specific policies, but an LOC document obtained by Roll Call and dated January of last year says that “the Library is committed to preventing and addressing all forms of discriminatory harassment,” including discrimination based on “sexual orientation or sexual identity.”
That document, however, encourages employees who believe they are victims of such harassment to file a complaint with the Office of Opportunity, Inclusiveness and Compliance, which is different from the office in which a formal complaint may be filed. An internal memo describing that department’s jurisdiction does not list sexual orientation as a covered area.
Correction: April 10, 2012
This story has been updated to clarify that the Library of Congress’ Equal Employment Opportunity Office is currently reviewing Peter TerVeer’s discrimination complaint. Roll Call was originally provided with erroneous information about where the complaint had been filed.