Army Changes Security Regulation after Termination of Employee for Anonymous Posts Relating to Sexual Orientation
The Department of the Army terminated a civilian employee after his “anonymous online posts” were discovered by his supervisors and coworkers. Those posts mentioned the employee’s sexual orientation. Army Regulation (“AR”) 380-67 provides that certain sexual behaviors “could raise a security concern and may be disqualifying.” Among those behaviors listed is “sexual behavior of a public nature and/or that which reflects lack of discretion or judgment.” On October 16, 2014, the Office of Special Counsel announced that the Department of the Army, after an OSC investigation, had modified AR 380-67 to state that “[n]o adverse inference concerning the standards in the Guideline may be raised solely on the basis of the sexual orientation of the individual.”
According to OSC, its investigation “determined that the Army’s removal of the employee from federal service because of an anonymous online post constituted a prohibited personnel practice” under a regulation that has become a catch-all for discrimination cases based on sexual orientation and gender identity, 5 U.S.C. § 2302(b)(10). Under this regulation, OSC found, the Agency was discriminating against the employee based on conduct that does not affect job performance.
This follows a May 2014 report to the President of the United States and to Congress from the Merit Systems Protection Board (“MSPB”) that called for specific legislation making the prohibition of discrimination based on sexual orientation explicit, beyond a May 1998 Executive Order from President Bill Clinton. That report noted that “[s]ince 1980, the U.S. Office of Personnel Management has interpreted the tenth Prohibited Personnel Practice (5 U.S.C. § 2302(b)(10)), which bars discrimination in Federal personnel actions based on conduct that does not adversely affect job performance, to prohibit sexual orientation discrimination.” But since there has not been a specifically-expressed statute or affirmation in a judicial decision, the tenth prohibited personnel practice has been “subject to alternate interpretations.”
OSC stated in its press release that the revised language in AR 380-67 might stem improper application of the security regulation and could focus the use of the regulation towards conduct that creates a security risk. Per OSC, the revised language “better reflects the security concerns the regulation was intended to address and encourages a more thoughtful analysis of whether an employees’ private conduct may actually create a security concern and thereby impact their work performance.”
For the above stated reasons, in addition to settling the employee’s individual claims against the Agency, the Agency provided remedial and sensitivity training for the relevant supervisors, according to OSC.
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Posted in Case Law Update