establishes Department of Commerce (the "Department")
policies for providing employees and applicants for employment with a
Department-wide and uniform complaint process by which to seek redress
for claims of sexual orientation discrimination. The complaint process
also provides an avenue of redress for claims of reprisal for
participating in the sexual orientation discrimination complaint
process or opposing sexual orientation discrimination.
Order 11478, as amended by Executive Order 12106, and as further
amended by Executive Order 13087 (collectively, the Executive Order)
prohibits discrimination and ensures equal opportunity for all persons,
without regard to sexual orientation, employed I or seeking employment
with the Federal government. The Department's nondiscrimination policy
prohibits discrimination based on sexual orientation against Department
employees, as well as retaliation. In addition, the Civil Service
Reform Act of 1978, 5 U.S.C. §2302(b)(10) prohibits any employee who
has authority to take personnel actions from discriminating against any
employee or applicants for employment on the basis of conduct which
does not adversely affect the employee's job performance or the
performance of others.
.02 These procedures covering complaints of discrimination based on
sexual orientation are issued pursuant to the Executive Order and the
Secretary of Commerce's authority to plan, direct, and control
It is the policy
of the Department to provide all employees a workplace free from
discrimination and retaliation and to value the differences each
employee brings from his or her culture, including sexual orientation.
It is further the Department's policy that no employee or applicant for
employment be subjected to unlawful discrimination because of sexual
orientation, or to retaliation for opposing sexual orientation
discrimination or for using this process.
occurring on or after the effective date of this Order may be raised
using this complaint process. For employees who are members of
collective bargaining units, the procedures will become effective at
such time as any collective bargaining/partnership obligations are
orientation is defined as homosexuality (Gay or Lesbian), bisexuality,
or heterosexuality, whether such orientation is real or perceived.
.02 Employment discrimination based on sexual orientation is treating
employees or applicants for employment differently from similarly
situated coworkers or applicants because of:
a. their sexual orientation or perceived sexual orientation;
b. their relationship with an individual(s) of a particular sexual
c. their affiliation with a group that is associated with sexual
orientation issues or whose membership is composed mainly of people of
a particular sexual orientation(s), including an employee organization.
.03 Retaliation, as defined in this process, refers to retaliation for
participating in the sexual orientation discrimination complaint
process, as a complainant or in some other capacity , or for opposing
sexual orientation discrimination.
.04 Day means a calendar day.
applies to all employees and applicants for employment in the
Department with the following exceptions:
a. those who are temporary employees in the Bureau of the Census
Decennial Program or are applying for such employment; and
b. employees covered by a collective bargaining agreement which does
not specifically exclude sexual orientation discrimination or related
retaliation from its negotiated grievance procedure.
.01 The Chief
Financial Officer and Assistant Secretary for Administration (CFO/ASA)
a. Approve policies, directives and other materials outlining the
Department's policies and complaint process for sexual orientation
b. Receive and issue decisions on appeals on final agency decisions
under this complaint process; and
c. Fulfill, on behalf of the Secretary, the Secretary's responsibilities
as head of an operating unit, i.e., the Office of the Secretary.
.02 Heads of operating units shall:
a. Foster an environment free of sexual orientation discrimination;
b. Ensure compliance with provisions of this Order; and
c. Publicize this policy and the complaints processing procedures to
.03 The Director for Civil Rights (Director, OCR) shall:
a. Develop and issue Department policy and procedures regarding sexual
b. Advise Department officials regarding laws, regulations and
Department policies pertaining to sexual orientation discrimination;
c. Process sexual orientation discrimination complaints filed under
.04 Operating unit Equal Employment Opportunity Officers (EEO Officers)
a. Ensure that managers, supervisors and human resources managers
understand the law and policies regarding sexual orientation
discrimination and advise them on these issues;
b. Coordinate management and employee training on sexual orientation
discrimination issues with human resources managers, as appropriate for
each operating unit; and
c. Process informal sexual orientation discrimination complaints under
.05 All managers and supervisors shall ensure that all personnel
actions, policies, practices, and the work environment are free from
discrimination and harassment on the basis of sexual orientation, and
that no employee or applicant for employment shall be subjected to
reprisal, intimidation, or coercion for raising an allegation of
discrimination based on sexual orientation, or for participating in
procedures addressing sexual orientation issues.
INFORMAL COMPLAINT PROCESSING PROCEDURES.
persons who believe they have been discriminated against on the basis
of sexual orientation must consult an Equal Employment Opportunity
Counselor (EEO Counselor) prior to filing a complaint in order to try
to resolve the matter informally.
.02 An aggrieved person must contact an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory, or the date he or
she first became aware of or should have become aware of the matter;
or, in the case of a personnel action, within 45 days of the effective
date of the action, or the date he or she first became aware of or
should have become aware of the personnel action.
.03 The operating unit EEO Officer or the Director, OCR may extend the
45-day time for initiating EEO counseling when the aggrieved person
shows that he or she was not notified of the time limits and was not
otherwise aware of them, that he or she did not know and reasonably
would not have known that the discriminatory matter or personnel action
occurred, that despite due diligence he or she was prevented by
circumstances beyond his or her control from contacting an EEO
Counselor within the time limits, or for other reasons considered
sufficient by the EEO Officer or the Director, OCR.
.04 At the initial counseling session, EEO Counselors must advise the
aggrieved person in writing of his or her rights and responsibilities
in this process, the duty to mitigate damages, and that only the
matter(s) raised in pre-complaint counseling (or matters like or
related to matters raised in pre-complaint counseling) may be alleged
in a subsequent formal complaint. EEO Counselors must also advise an
aggrieved person of his or her duty to keep the operating unit or
Department informed of his or her current address. During the
pre-complaint counseling stage, employees will be advised of other forums
for raising employment issues that may address discrimination based on
sexual orientation. Some of these forums include the Office of Special
Counsel which investigates prohibited personnel practices, the Merit
Systems Protection Board which hears appeals of certain agency actions,
the Federal Sector EEO Complaint Process, the Department's
administrative grievance procedure which addresses matters of concern
to employees (outside of issues that may be raised in the EEO complaint
process) and, for those employees in a bargaining unit, the negotiated
grievance procedures, as applicable.
.05 EEO Counselors shall conduct counseling activities in accordance
with Department and operating unit policies and procedures. When
advised that a formal complaint has been filed by an aggrieved person,
the EEO Counselor shall submit a written report within 15 days to the
operating unit EEO Officer and to the aggrieved person concerning the
issues discussed and actions taken during counseling.
.06 The EEO Counselor shall conduct the final interview with the
aggrieved person within 30 days of the date the aggrieved person
brought the matter to the EEO Counselor's attention, unless the
counseling period is extended for an additional 60 days by the
operating unit EEO Officer to facilitate resolution. If the matter has
not been resolved and the counseling period has not been extended, the
aggrieved person shall be notified in writing by the EEO Counselor, not
later than the thirtieth day after contacting the EEO Counselor, of the
right to file a discrimination complaint. The written notice shall
inform the aggrieved person of the right to file a discrimination
complaint within 15 days of receipt of the notice, of the appropriate
official with whom to file a complaint, and of the aggrieved person's
duty to notify the operating unit immediately, in writing, if the
aggrieved person retains counselor a representative. The notice will
also advise the aggrieved person that a complaint that is not filed
within the 15-day period may be dismissed as untimely. The EEO
Counselor must obtain the signature of the aggrieved person on the
notice with the date of receipt unless the notice was otherwise sent by
certified mail, return receipt requested.
.07 Where the aggrieved person agrees to participate in alternative
dispute resolution (ADR) procedures, the pre-complaint processing shall
be completed within 90 days. If the matter has not been resolved within
such 90-day period, complaint processing shall resume.
.08 The EEO Counselor shall not attempt in any way to restrain the
aggrieved person from filing a complaint. The EEO Counselor shall not
reveal the identity of an aggrieved person who consulted the EEO
Counselor, except when authorized to do so by the aggrieved person, or
until the operating unit or Department has received a formal
discrimination complaint prepared in accordance with this Order from
the aggrieved person involving that same matter.
FORMAL COMPLAINT PROCESS.
.01 Filing a
a. A complaint may be filed with the Director, OCR or the EEO Officer
of the operating unit where the alleged discrimination arose.
b. A complaint must be in writing and must be filed within 15 days of
receipt of the notice of right to file a complaint of sexual
c. A complainant has a right to a representative, of his or her choice,
throughout the complaint process. The representative may be, but does
not have to be, an attorney.
d. A complaint must contain a signed statement from the person claiming
to be aggrieved (complainant) or the complainant's representative. This
statement must be sufficiently precise to identify the complainant, the
operating unit where the complaint arose, and to describe generally the
action(s) or practice(s) that form the basis of the complaint. The
complaint must also contain a telephone number and address where the
complainant and the representative"can be contacted.
e. The Office of Civil Rights (OCR) shall acknowledge receipt of a
complaint in writing and inform the complainant of the date on which
the complaint was filed and of the specific accepted allegations. Such
acknowledgment shall also advise the complainant that the Department is
required to conduct a complete and fair investigation of the complaint
within 180 days of the filing of the complaint. The time limits may be
extended by the Director, OCR or the Chief, Compliance Division, to
ensure the complete development of the investigative record.
.02 Dismissal of Complaints. The Director, OCR shall dismiss a
complaint or a portion of a complaint:
a. That fails to state a claim covered under this DAO or states a claim
by the same complainant that is pending before or has been decided by
the Department, except for those allegations being processed under 29
CFR Part 1614;
b. That fails to comply with the applicable time limits contained in
this Order, unless the EEO Officer or Director, OCR extends the time
limits, or that raises a matter that has not been brought to the
attention of an EEO Counselor or is not like or related to a matter
that was raised in pre-complaint counseling;
c. Where the complainant has raised the matter in a negotiated
grievance procedure that does not exclude allegations of discrimination
based on sexual orientation or in a Merit Systems Protection Board
d. That is moot or alleges that a proposal to take a personnel action
or other preliminary step to taking a personnel action is
e. Where the complainant cannot be located, provided that reasonable
efforts have been made to locate the complainant and the complainant
has not responded within 15 days of receipt of a notice of proposed
dismissal sent to his or her last known address;
f. Where the EEO Officer or the Director, OCR has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant has failed to respond
to the request within 15 days of receipt, or the complainant's response
does not address the agency's request, provided that the request
included a notice of the proposed dismissal. Instead of dismissing for
failure to cooperate, the complaint may be adjudicated, if sufficient
information for that purpose is available; or
g. If, prior to the issuance of the final agency decision, the
complainant refuses to accept, within 30 days of receipt, an offer of
settlement by the operating unit which constitutes an offer of full
relief and contains a certification from the Director, OCR or a
designee, that the offer constitutes full relief, provided that the
offer gave notice that failure to accept within the period designated
would result in dismissal of the complaint.
.03 Investigation of Complaints.
a. The investigation of complaints shall be managed by OCR either
directly or through contractual services.
b. Any investigation will be conducted by a contract or government
investigator(s) with appropriate security clearance(s). OCR may elect
to conduct the investigation using an exchange of letters or memoranda,
interrogatories, fact-finding conferences, or any other fact-finding
methods that efficiently and thoroughly address the matters at issue.
c. The following procedures apply to the investigation of complaints:
1. The complainant, operating unit officials, and any employee of the
Department shall produce such documentary and testimonial evidence as
the investigator deems necessary.
2. Investigators are authorized to administer oaths. Statements of
witnesses shall be made under oath or affirmation or, alternatively, by
written statement under penalty of perjury.
3. When the complainant, or the operating unit against which a
complaint is filed, or its employees fail without showing good cause to
respond fully and in a timely fashion to requests for documents,
records, affidavits, or the attendance of witness(es), the investigator
may note in the investigative record that the decision-maker should, in
(a) Draw an adverse inference that the requested information, or the
testimony of the requested witness would have reflected unfavorably on
the party refusing to provide the requested information;
(b) Consider the matters to which the requested information or
testimony pertains to be established in favor of the opposing party;
(c) Exclude other evidence offered by the party failing to produce the
requested information or witness;
(d) Issue a decision fully or partially in favor of the opposing party;
(e) Take such other actions as are deemed appropriate.
d. OCR shall develop a complete and impartial factual record sufficient
to make findings on the matters raised by the written complaint.
e. OCR is responsible for completion of the investigation within 180
days of the date of filing of the formal complaint; however, the Chief,
Compliance Division, may extend the time period for up to an additional
90 days to ensure complete development of the investigative record.
f. Within 180 days from the filing of the complaint or within the
period of extension provided in subparagraph 9.03.e above, the Chief,
Compliance Division shall notify the complainant, in writing, that the
investigation has been completed and provide the complainant with a
copy of the investigative file. The notice shall advise the complainant
that the Director, OCR will issue a final agency decision within 60
.04 Final Agency Decisions (FADs). Within 60 days of issuing the Report
of Investigation, the Director, OCR shall issue a FAD. The FAD shall
consist of findings on the "merits of each matter in the complaint
and, when discrimination is found, appropriate remedies and relief
shall be ordered in accordance with applicable law. All FADs which
propose to make a finding of discrimination must be reviewed by the
Office of the General Counsel for legal sufficiency before they are
.05 Remedies and Relief. When the Director, OCR finds that an employee,
applicant for employment or former employee was discriminated against
on the basis of sexual orientation or was the subject of reprisal
prohibited by this Order, the Director, OCR shall provide appropriate
relief which may include back pay and benefits for employees or former
employees in appropriate circumstances, as authorized by 5 U.S.C. 5596
and any other applicable statute.
a. Notification to all employees of the operating unit at the operating
unit's facility in which the discrimination or reprisal took place that
the operating unit was found to have engaged in reprisal or
discrimination based on sexual orientation, that the employees have a
right to be free from such reprisal or discrimination, and that the
operating unit is committed to taking corrective or preventive action
to ensure that violations similar to those found will not recur .
b. Compensatory damages are not available to employees or applicants
for employment for discrimination based on sexual orientation.
c. Expungement from the operating unit's records of any adverse
materials pertaining to the complainant that relate to the
discriminatory employment practice.
d. Full opportunity to participate in the employment benefit denied (
e.g., training, preferential work assignments, overtime scheduling), if
the complainant is still a current employee, subject to the constraints
e. Commitment that the operating unit shall cease from engaging in the
specific discriminatory employment practice found in the case.
.06 Appeal Process. If the complainant is dissatisfied with the FAD, an
appeal may be filed with the CFO/ ASA. The appeal must be in writing
and must contain arguments or evidence which establish that the FAD was
a. new and material evidence is available that was not readily
available when the previous decision was issued; or
b. the previous decision involved an erroneous interpretation of material
facts, or misapplication of established policy or procedures contained
within this DAO and the decision is of such exceptional nature as to
have effects beyond the actual case at hand. The appeal with supporting
arguments or evidence, must be filed within 30 days of the date the FAD
is received. A complete copy of the appeal must be served on the
Director, OCR. Opposition to the appeal must be in writing and must be
submitted within 30 days from receipt of the appeal to the CFO/ASA with
a copy to the complainant. All appeals and oppositions to appeals must
be accompanied by a certificate of service containing the date and
manner in which service was effected. The CFO/ ASA will issue the
decision on the appeal no later than 60 days from receipt of the appeal
and the supporting arguments.
.07 Resolution Agreements. Each operating unit shall make reasonable
efforts to resolve complaints of discrimination, voluntarily and as
early as possible in and throughout the administrative processing of
the complaint, including the informal stage. Any resolution agreement
reached at any time in the process shall be in writing, signed by both
parties, and shall identify the allegations resolved. A copy of the
resolution agreement shall be given to the complainant, the manager
responsible for implementing the agreement, the EEO Officer and the
Director, OCR. All terms of the settlement agreement shall comply with
all Departmental policies, requirements, and legal authorities.
Procedures for obtaining clearances of settlement agreements shall be
identical to those used for EEO complaints processed under 29 CFR 1614.
Operating units are strongly encouraged to use ADR procedures to
facilitate early resolution.
.08 Compliance with Resolution Agreements and FADs
a. Any resolution agreement knowingly and voluntarily agreed to and
executed by all parties, reached at any stage of the complaint process
shall be binding on all parties. EEO Officers shall maintain all
documentation and records supporting compliance with the resolution
agreement including records associated with expungement of the
operating unit's files. If the complainant believes that the operating
unit has failed to comply with the terms of a resolution agreement, the
complainant shall notify the Director, OCR in writing, of the alleged
noncompliance with the resolution agreement, within 30 days of when the
complainant knew or should have known of the alleged noncompliance. The
complainant may request that the terms of the resolution agreement be
specifically implemented or, alternatively, that the complaint be
reinstated for further processing from the point where processing
ceased. The Director, OCR will issue a FAD on the breach of resolution
agreement claim within 60 days of receipt of the claim. If the Director.
OCR determines that the agreement has not been complied with and the
noncompliance is not attributable to acts or conduct of the
complainant, the Director, OCR may order such compliance or order that
the complaint be reinstated for further processing from the point
processing ceased. There are no further appeals from a FAD on a breach
b. A FAD by the Director, OCR or an appeal decision by the CFO/ ASA
shall be binding on both the operating unit and the complainant. The
operating unit shall report to the Director, OCR and submit
documentation supporting compliance with the FAD. If the complainant
believes that the operating unit has failed to comply with the FAD, the
complainant shall notify the Director, OCR in writing, of the alleged
.09 Relationship to other procedures. Nothing in this Order shall
abrogate the rights of any employee to file a complaint of
discrimination against the Department within the purview of the Federal
Sector Equal Employment Opportunity Complaint Procedures, 29 CFR Part
1614, or in an appropriate U.S. District Court. To the extent possible
and consistent with existing authorities, relevant Departmental
policies and practices generally used in processing complaints of
discrimination under 29 CFR Part 1614 also will be applied to
processing complaints of discrimination based on sexual orientation.
This may include, but is not limited to: granting employees a
reasonable amount of official time; computation and calculation of
dates for resolving timeliness issues; and confidentiality of records.
.10 Management's rights. Managers and alleged responsible officials
shall have the same rights and opportunities to review documents, be
made aware of allegations, and provide responses and evidence as are
available to managers under 29 CFR Part 1614 and the implementing Equal
Employment Opportunity Commission Management Directive, MD-110.
.11 Additional complaint procedures. OCR may issue additional complaint
procedures in its "Handbook for Processing Discrimination
Complaints," issued pursuant to Department Administrative Order
200-0, "Department of Commerce Handbooks and Manuals."
Administrative order 215-9, "Filing Discrimination
.02 "Handbook for Processing Discrimination Complaints,"
issued pursuant to Department Administrative Order 200-0.
"Department of Commerce Handbooks and Manuals."
concerning this Order should be addressed to the Departmental Office of
Civil Rights. This document will be made available in alternate format,
such as large print or audiotape, upon request by calling (202)
Signed - Director
for Civil Rights
Approved Signed - Chief Financial Officer and Assistant Secretary for Administration
Office of Primary Interest Office of Civil Rights
Index Changes Add Complaint Process for Sexual Orientation
Discrimination 215-11 Discrimination, Complaint Process for Sexual
Orientation 215-11 Sexual Orientation Discrimination, Complaint Process