U.S. Civil Service Commission Prohibits Discrimination Against Federal Employees Summary

  • Last updated on November 11, 2022

The U.S. Civil Service Commission, functioning as the federal government’s human resources department until 1978, had a prolonged record of antigay and antilesbian discrimination in its hiring and retention practices. Through court challenges and changes in public attitude, the policy was halted in 1975.

Summary of Event

The U.S. Civil Service Commission served as the central personnel agency for the federal government from 1883 until 1978. Following passage of the Civil Service Reform Act of 1978, Civil Service Reform Act (1978) the commission became the Office of Personnel Management. The commission had a long history of terminating homosexual employees (and barring them from employment), dating to at least the 1950’s and the McCarthy McCarthyism[Maccarthyism] era. The government feared Communist infiltration, and also feared that homosexuals, considered by many to be part of a powerful, well-educated, and highly placed “secret society,” also posed a threat to American morals and values. [kw]U.S. Civil Service Commission Prohibits Discrimination Against Federal Employees (July 3, 1975) [kw]Civil Service Commission Prohibits Discrimination Against Federal Employees, U.S. (July 3, 1975) [kw]Discrimination Against Federal Employees, U.S. Civil Service Commission Prohibits (July 3, 1975) [kw]Federal Employees, U.S. Civil Service Commission Prohibits Discrimination Against (July 3, 1975) [kw]Employees, U.S. Civil Service Commission Prohibits Discrimination Against Federal (July 3, 1975) Employment rights;U.S. government[US government] Civil rights;U.S. government employment[US government] [c]Government and politics;July 3, 1975: U.S. Civil Service Commission Prohibits Discrimination Against Federal Employees[1130] [c]Civil rights;July 3, 1975: U.S. Civil Service Commission Prohibits Discrimination Against Federal Employees[1130] [c]Laws, acts, and legal history;July 3, 1975: U.S. Civil Service Commission Prohibits Discrimination Against Federal Employees[1130] Kameny, Franklin Scott, Bruce Norton, Clifford Hickerson, Donald

The Civil Service Commission relied heavily upon the U.S. Senate document “Employment of Homosexuals and Other Sex Perverts in Government” "Employment of Homosexuals and Other Sex Perverts in Government" (U.S. government document)[Employment of Homosexuals and Other Sex Perverts in Government] "Homosexuals and Other Sex Perverts in Government, Employment of" (U.S. government document)[Homosexuals and Other Sex Perverts in Government, Employment of] (1950) to formulate its regulations regarding gay and lesbian applicants and employees. First, agency officials stated that fellow employees would not tolerate working with homosexuals. Second, because it was believed that a scandal would erupt if known homosexuals were allowed to work in federal positions, the commission thought it necessary to exclude homosexuals on grounds of workplace efficiency and public trust. From the 1950’s until 1975, an estimated five thousand gay and lesbian employees were terminated by the Civil Service Commission. This figure does not include those not hired because of their sexual orientation.

Franklin Kameny, who had been fired by the Civil Service Commission in 1957, advocated a series of test cases in the courts that challenged the commission’s discriminatory practices. The first challenge appeared in 1965, when Bruce Scott, a former Labor Department employee, filed suit (Scott v. Macy, 1965, 1968). Scott v. Macy (1965, 1968)[Scott v Macy] The Court of Appeals overruled his commission disqualification, but the commission stood steadfast against the ruling. Scott refiled the case and won again three years later.

Another victory came with the landmark decision in Norton v. Macy (1969). Norton v. Macy (1969)[Norton v Macy] In the opinion written by Judge David Bazelon, Clifford Norton’s sexual orientation was irrelevant to his employment and therefore he never should have been discharged. Bazelon wrote that the federal government did not have the authority to enforce morals. Discriminatory practices against gays fail to uphold U.S. standards of liberty, privacy, and diversity. Furthermore, the government failed to provide a rational basis for how this discharge promoted an efficiency of service. A clear relational test must exist for determining whether a person could be terminated for homosexual or other behavior deemed immoral. While the ruling was a huge leap forward, it did not offer unqualified support for gay and lesbian employee rights. Overall, it had a minor impact on the commission’s policies and the courts.

In the post-Stonewall decade of the 1970’s, changing social opinions began to make the Civil Service Commission’s exclusion of gays and lesbians less acceptable. The LGBT community moved aggressively against federal employment policies. The courts took a more progressive and activist approach concerning gay and lesbian rights. The federal government, however, remained recalcitrant and slow to reform hiring practices.

On December 20, 1971, the American Civil Liberties Union American Civil Liberties Union filed a class-action lawsuit against the commission and the U.S. government, demanding a stop to the discriminatory job dismissals of lesbian and gay federal employees. The suit requested a permanent injunction against the Civil Service Commission and the government from investigations of sexual activities of federal employees or those applying for employment. Employment disqualification based solely on sexual orientation should be considered unlawful.

By October, 1973, it was clear that the Civil Service Commission had to change its policies regarding gay and lesbian employees. As a result of the class-action lawsuit, named Society for Individual Rights and Hickerson v. Hampton Society for Individual Rights and Hickerson v. Hampton (1973) (also known as S.I.R. v. Hampton), the commission’s antigay exclusionary policy was overturned, and a permanent injunction placed against further implementation. Presiding Judge Alphonso J. Zirpoli became the first judge to recognize gays and lesbians as a “class” under the law. Individuals could not be denied federal employment merely on the basis of his or her homosexuality.

Within two months of the court decision the Civil Service Commission proposed in the Federal Register a set of new rules on hiring. Although the commission approved the final version of the regulations in late summer of 1973, it did not release them pending detailed guidelines, clarified by S.I.R. v. Hampton. As published, the changes would require hiring officials to use a case-by-case checklist to determine applicant suitability for federal employment. The regulations stated that a rational connection must be drawn between a person’s homosexual conduct and job performance before dismissal or denial of employment. Any differentiation between heterosexual and homosexual employees is unallowable. Most important, the new checklist would come to provide an objective, verifiable, legal tool in case of court challenge.

Under the new guidelines, grounds for dismissal include conduct that is criminal, dishonest, infamous, or notoriously disgraceful. However, the nature of the job, content and seriousness of outside conduct, and that conduct’s potential impact on job performance, are allowable factors in reviews regarding the employment suitability of job candidates.

In the light of the Norton, Scott, and S.I.R. court rulings against the U.S. Civil Service, the three-member commission had few other options than to change its discriminatory policy toward lesbians and gays. Through July 3, 1975, however, the commission held resolute on the matter, believing Norton, Scott, and S.I.R. applied to individuals involved in litigation only and not to “homosexuals” as a blanket category. On a quiet July 4 holiday weekend in 1975, out of the media limelight, the commission adopted the revised employment suitability regulations. Still adhering to old taboos, however, “sensitive” positions in agencies such as the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and the U.S. military would be exempt from antidiscriminatory measures.

The Civil Service Reform Act of 1978 completely overhauled the federal civilian personnel system, and the Civil Service Commission was replaced by the Office of Personnel Management. The reform act carried forward antidiscriminatory standards the courts established in rulings in Norton, Scott, and S.I.R. The new law prohibited personnel practices that discriminate against any employee or applicant whose behavior or conduct does not adversely affect the job performance of the individual or of others. On May 28, 1998, President Bill Clinton Clinton, Bill issued Executive Order 13087, prohibiting discrimination based on sexual orientation in federal civilian employment.

Significance

Similar to other civil rights advances, it was the federal courts as well as progressive thinking that engendered changes in the case of lesbian and gay federal workers. If the U.S. government, as one of the largest employers in the country, failed to stop antigay hiring practices, who or what would motivate private companies to not follow the government’s lead and institute their own antidiscriminatory practices? As the courts have ruled, homosexuals are no more nor less capable of performing government work than are heterosexuals. Employment rights;U.S. government[US government] Civil rights;U.S. government employment[US government]

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">“ACLU Suit Fights Federal Dismissals for Homosexuality.” The New York Times, December 21, 1971, p. 26.
  • citation-type="booksimple"

    xlink:type="simple">Aikens, David. “Gay Is Now OK in 2.6 Million Federal Jobs.” The Advocate, July 30, 1975.
  • citation-type="booksimple"

    xlink:type="simple">_______. “U.S. Asks Job Rules Keyed to Performance.” The Advocate, January 2, 1974.
  • citation-type="booksimple"

    xlink:type="simple">Causey, Michael. “Changes Proposed in Rules on Hiring.” Washington Post/Times Herald, December 4, 1973, p. B13.
  • citation-type="booksimple"

    xlink:type="simple">Federal GLOBE: Gay, Lesbian, Bi, and Transgender Employees of the Federal Government. http://www.fedglobe.org.
  • citation-type="booksimple"

    xlink:type="simple">“Federal Judge Orders United States to End Hiring Ban.” The Advocate, December, 1973.
  • citation-type="booksimple"

    xlink:type="simple">Green, Stephen. “Homosexuals Win Job Rights.” Washington Post, July 4, 1975, p. A1.
  • citation-type="booksimple"

    xlink:type="simple">“Homosexuals’ U.S. Job Rights Upheld.” Los Angeles Times, July 4, 1975, p. A17.
  • citation-type="booksimple"

    xlink:type="simple">Jasiunas, J. Banning. “Is ENDA the Answer? Can a ’Separate but Equal’ Federal Statute Adequately Protect Gays and Lesbians from Employment Discrimination?” Ohio State Law Journal 61 (2000): 1529.
  • citation-type="booksimple"

    xlink:type="simple">Johnson, David. “Homosexual Citizens: Washington’s Gay Community Confronts the Civil Service.” Washington History (Fall/Winter, 1994-1995): 44-63.
  • citation-type="booksimple"

    xlink:type="simple">Lewis, Gregory. “Lifting the Ban on Gays in the Civil Service: Federal Policy Toward Gay and Lesbian Employees Since the Cold War.” Public Administration Review 57, no. 5 (September/October, 1997): 387-395.
  • citation-type="booksimple"

    xlink:type="simple">“Shedding Blinders.” The New York Times, July 16, 1975, p. 32.
  • citation-type="booksimple"

    xlink:type="simple">Winfeld, Liz. Straight Talk About Gays in the Workplace: Creating an Inclusive, Productive Environment for Everyone in Your Organization. 3d ed. New York: Harrington Park Press, 2005.

April 27, 1953: U.S. President Eisenhower Prohibits Federal Employment of Lesbians and Gays

1972-1973: Local Governments Pass Antidiscrimination Laws

June 27, 1974: Abzug and Koch Attempt to Amend the Civil Rights Act of 1964

1978: Lesbian and Gay Workplace Movement Is Founded

June 2, 1980: Canadian Gay Postal Workers Secure Union Protections

December 4, 1984: Berkeley Extends Benefits to Domestic Partners of City Employees

November 8, 1988: Oregon Repeals Ban on Antigay Job Discrimination

May 1, 1989: U.S. Supreme Court Rules Gender-Role Stereotyping Is Discriminatory

September 29, 1991: California Governor Wilson Vetoes Antidiscrimination Bill

September 23, 1992: Massachusetts Grants Family Rights to Gay and Lesbian State Workers

1994: Employment Non-Discrimination Act Is Proposed to U.S. Congress

April 2, 1998: Canadian Supreme Court Reverses Gay Academic’s Firing

July, 2003: Singapore Lifts Ban on Hiring Lesbian and Gay Employees

July, 2003: Wal-Mart Adds Lesbians and Gays to Its Antidiscrimination Policy

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