1964

Civil Rights Act 1993

of 1964 Don’t Ask,
1871
Don’t Tell 2010
Civil Rights Act 1972
of 1871 Don’t Ask, Don’t
Equal
1941 Tell repealed
Employment 1991
1866 Homosexuals Opportunity Act Civil Rights Act
Civil Rights Act prohibited from 2012
of 1866 of 1991 Coleman v. Court
military service
of Appeals of MD

1860 2014

1940
1868 Ramspect Act
1963
Fourteenth 1993
Equal Pay Act 1971
Amendment FMLA
Griggs v. Duke 2009
Power Lilly Ledbetter Fair
Pay Act
1982 1998
Wisconsin outlaws Executive Order
discrimination 13087
based on sexual
orientation

FIGURE 9.1 From Sameness to Differentness: Benchmarks across Time

9
FROM SAMENESS TO
DIFFERENTNESS
Norma M. Riccucci

In June 2013, the U.S. Supreme Court issued several rulings that affected social
equality measures in different ways for different groups. The United States
v. Windsor (2013) decision opens the door for marriage equality and, as a corol-
lary, the extension of federal benefits to same-sex marriages (for example, social
security; military leave; tax advantages). In Fisher v. University of Texas (2013),
the Court effectively placed affirmative action on the back burner by asking
the Fifth Circuit Court of Appeals to review its decision upholding affirma-
tive action in university admissions. In Shelby County v. Holder (2013), the High
Court dealt a blow to people of color by striking down Section 4 of the Voting
Rights Act, which will permit states predominantly in the South to develop
measures that could severely limit their constitutional right to vote. In short,
the Supreme Court surprisingly showed some beneficence to gays and lesbians,
showed indifference to race-based admissions policies, and completely subverted
African Americans and Latinos in terms of their voting rights.
These decisions in a way reflect the manner in which “differentness” has
evolved in the field of public administration as well as how different groups have
been and are treated by public employers. In many cases the treatment follows
statutory, constitutional, or case law, but in other realms it follows pattern or
practice. And, as with the 2013 Court rulings noted above, it has been a give-
and-take process or, as Mary Guy (1993) aptly characterized, the progress women
have made in the federal service: “Three Steps Forward, Two Steps Backward.”
This chapter begins with a short summary of how differentness evolved and
how it has replaced expectations of sameness. The primary focus of the chapter is
on looking ahead vis-à-vis differentness—where progress is lacking and areas to
target for change. As will be seen, some of the prescriptions for change are not
new and progress has been slow. For example, despite calls for greater diversity
194 Norma M. Riccucci

in the upper reaches of government at every level, sameness perdures. The field
is also beginning to advance our knowledge into other realms of differentness,
such as the employment of lesbians, gays, bisexuals, transgendered and question-
ing (LGBTQs). This issue will also be addressed. So, too, will be the issue of
family responsibilities discrimination (FRD), or caregiver discrimination, which
abrogates the rights of both women and men who are the primary caregivers for
children, aging parents, or sick spouses or partners. Differentness is not simply a
matter of change to the social composition of the workplace. Its importance also
manifests in organizational cultures that support differences in choice, such as the
ability of workers to make choices about parenting and caregiving.

Background
Historically, the U.S. government workplace at every level has been predomi-
nately male, white, and Eurocentric. The same can be said for the private sector.
Discrimination on the basis of gender, race, ethnicity, color, religion, national-
ity, disability, age, and, more recently, sexual or gender identity, prevailed even
after laws proscribing discrimination were passed. For example, after passage of
the Equal Employment Opportunity Act of 1972, which extended Title VII
of the Civil Rights Act of 1964 to the public sector, municipal police and fire
departments set up covert barriers to the hiring of women and people of color.
The most common were height and weight requirements. In addition, some
police and fire departments attempted to set gender as a bona fide occupational
qualification to prevent women from being hired (see Manley v. Mobile County,
Ala. 1977).
Slowly and incrementally the public sector moved toward differentness
particularly in terms of gender, race, and ethnicity in large part due to court-
ordered affirmative action programs (Kellough 2006; Riccucci 2002; Naff 2001).
While these programs or policies helped to reshape the social landscape of public
employment, white males often sought to derail the efforts with claims of “reverse
discrimination,” a most inexact, inauspicious term that further obfuscated and
impeded diversity efforts. Courts sometimes rebuffed those challenges, but even
judicial intervention has been mercurial, resulting in gains at times followed by set-
backs. For example, the landmark High Court ruling in Griggs v. Duke Power Co.
(1971) made it less complicated for alleged victims of employment discrimina-
tion to prove their Title VII case. If alleged victims could demonstrate that the
employment practice in question had a harsh or adverse impact on them, the
burden of proof would shift to the employer to demonstrate “business necessity”
(for example, that the employment tool was job related). The standards of law
created by Griggs were completely eviscerated by the U.S. Supreme Court’s 1989
decision in Wards Cove v. Antonio (1989). In Wards Cove, the Court stated that
after a showing of adverse impact, the burden of proof remains with the alleged
victims, who must demonstrate that the employment tools were intentionally used
 From Sameness to Differentness 195

for illegal purposes; in other words that the employer intentionally discriminated
against them, which is extremely difficult to prove. In effect, Title VII was gutted
by the Court. The Griggs ruling was essentially restored with passage of the Civil
Rights Act of 1991.
More recently, the U.S. Supreme Court’s 5–4 ruling in Ledbetter v. Good-
year Tire & Rubber Company (2007) effectively made it more difficult for public
and private sector employees to file pay-discrimination complaints against their
employers. When Lilly Ledbetter, a supervisor at the Goodyear’s tire assembly
department in Gadsden, Alabama, became aware—some ten years later—that
she was making less money than her male counterparts, she filed suit. The Court
ruled that she was time-barred from filing suit because she failed to file the lawsuit
within the first 180 days of receiving the first unequal pay check, notwithstanding
the fact that she had no knowledge the checks were unequal. Recognizing the
absurdity of the ruling, Congress passed the Lilly Ledbetter Fair Pay Act in 2009,
which states that the 180-day statute of limitations for filing a lawsuit resets with
each new pay check affected by the discriminatory treatment.
In short, efforts to promote diversity or differentness particularly in the areas
of race, ethnicity, and gender can be characterized by fits and starts. Government
employers and courts steered the movement toward differentness. Sometimes
Congress would step in to rectify regressive rulings by the courts. As can be seen
in the following section, some progress, in effect, has been made. Unfortunately,
data showing composition of the workforce are not available prior to passage of
the Civil Rights Act, for it was not until then that employers were required to
report the demographics of their workers. Another way to think about this is
that, not until the mid-1960s was it deemed important enough to monitor access
to jobs for all citizens.

Progress in Promoting Differentness

Certainly, in the aggregate, public sector workforces are much more diverse
today than, say, fifty years ago. A number of studies have charted the progress,
illustrating the inroads women and people of color made in state, local, and fed-
eral workforces (see, for example, Guy 1993; Guy and Fenley 2014; Naff 2001;
Riccucci 2002, 2009). Figures 9.2 and 9.3 summarize the changes.1 For example,
Figure 9.2 illustrates changes in the demographic characteristics of the federal
government from 1964 to 2013. Not surprisingly, white employees have enjoyed
the greatest share of federal jobs during these time periods. Racial and ethnic
minorities have held the fewest jobs. It can also been seen that all groups suffered
from losses and gains in various time intervals (e.g., from 1980 to 2000, with
whites experiencing more dramatic cuts during this period). All groups made
gains between 2000 and 2010, with a slight dip going into 2013.
Figure 9.3 shows demographic employment data at the state and local levels
of government. As with the federal workforce, whites have the highest levels of
 3,000

Number employed (thousands)

2,500

2,000

1,500

1,000

500

0
1964 1970 1980 1990 2000 2010 2013
Year

Minority employees in federal government

Female employees in federal government
White employees in federal government

FIGURE 9.2 Employees in Federal Government

Source: Calculated from King et al. 2010.

12,000
Number employed (thousands)

10,000

8,000

6,000

4,000

2,000

0
1964 1970 1980 1990 2000 2010 2013
Year

Female employees in state and local government

Minority employees in state and local government

White employees in state and local government

FIGURE 9.3 Employees in State and Local Government

Source: Calculated from King et al. 2010.
 From Sameness to Differentness 197

employment, while persons of color have the lowest. And the difference here is
quite stark. For example, even when job levels peaked for all workers in 1980,
people of color represented not even 10 percent of state and local government
jobs, while whites held over 56 percent and women 35 percent.2 By 2010, people
of color represented 13 percent of those jobs, with whites holding close to 50
percent and women holding about 37 percent.
Thus, there has been some progress in the social landscape of all governments in
terms of women and people of color, at least in terms of overall employment levels.
Yet, as the figures illustrate, the levels of employment for people of color are much
“flatter” than for those of women and whites. Also, as the research has consistently
illustrated, progress in terms of pay and promotion to upper levels of employment
has been lacking (see, for example, Guy and McCandless 2012; Guy and Fenley
2014; Riccucci 2009; Naff 2001). This will be addressed in the next section.
It should also be noted that the research on representative bureaucracy dem-
onstrates the significance of differentness in bureaucracies (see Bradbury and Kel-
lough 2011; Meier and Nicholson-Crotty 2006; Wilkins 2007). The theory of
representative bureaucracy holds that government workforces will perform better
and more democratically if their demographic makeup reflects the population
they serve. In the passive sense, representative bureaucracy asks if the workplace
mirrors the social characteristics of the general population. Active representative-
ness asks whether different groups in the bureaucracy are able to push for the
needs and interests of their counterparts in the population.
In short, baby steps have been taken forward, but there continues to be a
need for progress in promotions and pay, as will be seen shortly. Other areas
where progress is lacking include policies that support the rights of workers to
make choices about caregiving, and policies that promote the employment of
LGBTQs. FRD has received very little attention in the public administration
literature, but the problem persists. The same can be said for the employment of
LGBTQs, where tracking accurate data continues to be challenging.

Taking “Steps Forward”

There are several areas of public employment where greater progress is needed.
Addressed in this chapter are (1) pay and promotion; (2) FRD; and (3) the
employment of LGBTQs.

Pay and Promotion

As it has been repeatedly demonstrated, the upper levels of government employ-
ment are still dominated by white men (see, for example, Guy and Fenley 2014).
Although some progress has been made, women and people of color continue
to lag. As Table 9.1 indicates, women increased their overall representation in
Senior Executive Service (SES) posts. However, overall they constitute only 33.5
198 Norma M. Riccucci

percent of these jobs compared to 66.5 percent for men. African-American men
had the smallest gain as SESers (8.3 percent), and American-Indian or Alaskan-
Native men experienced a decrease (–10 percent). White men also experienced
a small decrease (–4.1 percent), but they continue to hold the largest share of
SES positions (55.1 percent). Also, while the numbers are extremely low, men
of unspecified or more than one race experienced an overwhelmingly large gain
in SES jobs.

TABLE 9.1 SES Employment by Race, Ethnicity, and Gender, 2007 and 2012

Number Number Percent

(Percent) (Percent) change
2007 2012
Total SES 7,473 8,004 7.1
Women 2,141 2,678 25.1
(30.0) (33.5)
Men 5,332 5,326 –0.1
(70.0) (66.5)
African-American
Women 251 383 52.6
(3.4) (4.8)
Men 342 446 30.4
(4.6) (5.6)
Latino
Women 72 105 45.8
(1.0) (1.3)
Men 206 223 8.3
(2.8) (2.8)
Asian or Pacific Islander
Women 67 105 56.7
(0.9) (1.3)
Men 111 158 42.3
(1.5) (2.0)
American-Indian or Alaskan Native
Women 30 37 23.3
(0.4) (0.5)
Men 60 54 –10.0
(0.8) (0.7)
White
Women 1,713 2,037 18.9
(23.0) (25.4)
Men 4,597 4,407 –4.1
(62.0) (55.1)
Unspecified or more than one race
Women 8 11.0 37.5
(0.1) (0.1)
Men 16 38.0 137.5
(0.2) (0.5)
Source: Calculated from data provided by the U.S. Office of Personnel Management (OPM).
Note: Totals may not equal 100 due to rounding errors.
 From Sameness to Differentness 199

TABLE 9.2 Federal Civilian Employment by Senior Pay, Race, Ethnicity, and Gender,
2004 and 2010
Senior pay level* (in %) Percent
2004 2010 change
Total Executive Branch 18,991 29,171 53.6
Women 25.8 31.1 20.5
Men 74.2 68.9 –7.1
African-American
Women 2.7 2.9 7.4
Men 3.8 3.5 –7.9
Latino
Women 1.0 1.3 30.0
Men 2.5 2.8 12.0
Asian or Pacific Islander
Women 0.9 3.7 311.1
Men 2.3 6.1 165.2
American-Indian or Alaskan Native
Women 0.2 0.4 100.0
Men 0.6 0.7 16.7
White
Women 21.0 22.8 8.6
Men 65.0 55.9 –14.0

Sources: Calculated from U.S. OPM n.d.; for 2010 data, U.S. OPM 2011
Notes: Totals may not equal 100 due to rounding errors; *Senior pay levels include, for example,
the following pay plans: SES, Executive Level, Senior Foreign Service, Administrative Law Judges,
Board of Contract Appeals, and Foreign Service Chiefs of Mission, and Scientific and Professional.
The Senior-level pay indicator was created in 1991. Senior pay ranges from about $100,000
upwards to approximately $200,000.

Table 9.2 provides data on employment at the senior pay levels by race,
gender, and ethnicity. Interestingly, between 2004 and 2010, there were very
small changes for women with the exception of Asian or Pacific Islanders, whose
share of senior jobs rose from 0.9 percent in 2004 to 3.7 percent in 2010. For
men, the picture is quite different. As seen in Table 9.2, the African-American
and white share of senior-level jobs decreased, with the latter experiencing the
largest drop, from 65 percent in 2004 to 55.9 percent in 2010. Asian men expe-
rienced the largest increase in positions at the senior pay level. In 2004 they held
2.3 percent of these jobs; that rose to 6.1 percent in 2010. Latino men experi-
enced a relatively small rise during these time periods.
Differentness in the overall employment of women and people of color is
important, but so too is differentness in pay and employment levels. Higher level
jobs come with greater power and authority as well as salary. This continues to
be an area where progress has stagnated.
200 Norma M. Riccucci

FRD
Elements of differentness are also reflected in FRD, which affects both women
and men. As noted earlier, it is important that organizational cultures support
differences as they are manifested in choices. Choice begets difference; women
who choose to have a child or men who choose to care for an ill elderly parent
must be able to exercise those choices without fear of reprisal. Unfortunately, the
culture of organizations allows for the punishment of employees who exercise
those choices or who take responsibility for parenting or caregiving.
In terms of FRD, given that women are largely responsible for caregiving,
working mothers represent the majority of FRD claimants.3 As Swiss and Walker
(1993) have argued, women in the workplace hit a “maternal wall”; that is, there
are barriers that hinder their ability to balance family and work life.
There is no federal law that expressly prohibits discrimination based on
family responsibilities. Rather, the claims are brought under Title VII of the
Civil Rights Act as amended,4 the Family Medical Leave Act, or state or local
laws.5 Insofar as discrimination occurs as a result of caring for disabled children
or relatives, the Americans with Disabilities Act also protects workers from
FRD (Williams and Bornstein 2006, 2008). In 2007, after hearings on the
matter, the U.S. Equal Employment Opportunity Commission (EEOC) issued
guidelines on the treatment of workers with caregiving responsibilities. Par-
ticipants at the hearing provided testimony on the way in which stereotypes
lead to FRD:

Female employees tend to be less committed to work once they have chil-
dren. Female employees will want a reduced schedule or less responsibility
once they have children. Fathers are not the primary caretakers of young
children, women are. Fathers don’t need to take as much time off to care
for their children.
(Scott 2007)

The EEOC guidelines clearly state that a new protected class category is not being
created. Rather the guidelines are intended to demonstrate that discrimination
against caregivers might constitute unlawful disparate treatment. The guidelines
(U.S. EEOC, 2007a) offer the following as relevant evidence for FRD claims:

• W hether the respondent asked female applicants, but not male appli-
cants, whether they were married or had young children, or about their
childcare and other caregiving responsibilities;
• Whether decision makers or other officials made stereotypical or derog-
atory comments about pregnant workers or about working mothers or
other female caregivers;
 From Sameness to Differentness 201

• W hether the respondent began subjecting the charging party or other

women to less favorable treatment soon after it became aware that they
were pregnant;
• Whether, despite the absence of a decline in work performance, the
respondent began subjecting the charging party or other women to less
favorable treatment after they assumed caregiving responsibilities;
• Whether female workers without children or other caregiving respon-
sibilities received more favorable treatment than female caregivers based
upon stereotypes of mothers or other female caregivers;
• Whether the respondent steered or assigned women with caregiving
responsibilities to less prestigious or lower-paid positions;
• Whether male workers with caregiving responsibilities received more
favorable treatment than female workers;
• Whether statistical evidence shows disparate treatment against pregnant
workers or female caregivers;
• Whether respondent deviated from workplace policy when it took the
challenged action;
• Whether the respondent’s asserted reason for the challenged action is
credible.

In 2010, the Center for WorkLife Law conducted a study which examined over
2,100 cases involving FRD (Calvert 2010). The Center reports that lawsuits filed
by workers with family caregiving responsibilities have increased by about 400
percent in the past decade. Based on the Center’s analysis, it reported the follow-
ing three themes in case law: (1) new supervisors or managers change or eradicate
work shifts, and/or flexible scheduling and impose onerous productivity require-
ments; (2) FRD is more likely when a woman is on her second pregnancy, which
is taken as an indication that her commitment to the organization will subside;
and (3) a growing number of FRD cases involving workers providing care for
their aging parents.
FRD claims tend to be litigated as disparate treatment cases, where one
employee is treated differently than another based on a protected-class charac-
teristic. One significant factor regarding these FRD cases is that stereotyping
evidence can be offered in a disparate treatment cause of action. Traditionally,
proving disparate treatment involves the use of a similarly-situated comparator
to illustrate that the alleged victim of FRD is being treated worse (see Williams
and Bornstein 2006). In Back v. Hastings on the Hudson Union Free School District
(2004), the U.S. Court of Appeals for the Second Circuit held that disparate
treatment under Title VII, in the absence of a comparator, can be proven with
evidence of gender stereotyping. The case involved Elana Back who was hired
as a school psychologist on a three-year tenure-track line. Back was denied ten-
ure after three years on the grounds, according to the school district, that she
lacked interpersonal and organizational skills. Back argued that the termination
202 Norma M. Riccucci

was based on gender stereotyping: that as a young mother, she would be unable
to demonstrate a commitment to her job.
In her first year, Back had received “superior” and “outstanding” job evalu-
ations from her supervisors. In her second year, she took about three months
of maternity leave. Shortly after her return, she continued to receive high per-
formance ratings. However, Back stated that her supervisors began to make
discriminatory comments; they “(a) inquired about how she was ‘planning on
spacing [her] offspring,’ (b) said ‘[p]lease do not get pregnant until [you] retire,’
and (c) suggested that [she] ‘wait until [her son] was in kindergarten to have
another child’” (Back v. Hastings 2004, 115). The court found that stereotyped
remarks can serve as evidence that gender played a part in an adverse employment
decision. It stated:

On the facts alleged, [supervisors] stereotyped the plaintiff as a woman and

mother of young children, and thus treated her differently than they would
have treated a man and father of young children. . . . such differential treat-
ment was unlawful.
(Back v. Hastings 2004, 129)

In another case, Lust v. Sealy (2004), the Seventh Circuit Court of Appeals found
that a successful salesperson was not promoted because her supervisor assumed
she would not relocate on the basis of her family status. In fact, as the court
pointed out, Tracey Lust’s supervisor

admitted that he didn’t consider recommending Lust for the [promotion]

because she had children and he didn’t think she’d want to relocate her
family, though she hadn’t told him that. On the contrary, she had told
him again and again how much she wanted to be promoted, even though
there was no indication that a . . . [management] position would open
up any time soon [locally]. . . . antidiscrimination laws entitle individuals
to be evaluated as individuals rather than as members of groups having
certain. . . . characteristics.
(Lust v. Sealy 2004, 583)

In the end, the court allowed Lust to introduce gender-based stereotypes of

mothers as evidence of FRD and ruled in her favor.
The EEOC guidelines (EEOC 2007b) discussed earlier point to a number of
“best practices” to encourage organizations to change their culture to support
workers with caregiving responsibilities. These include, for example:

• B
e aware of, and train managers about, the legal obligations that
may impact decisions about treatment of workers with caregiving
responsibilities;
 From Sameness to Differentness 203

• D evelop, disseminate, and enforce a strong EEO policy that clearly

addresses the types of conduct that might constitute unlawful discrimi-
nation against caregivers based on characteristics protected by federal
anti-discrimination laws;
• Ensure that managers at all levels are aware of, and comply with, the
organization’s work–life policies;
• Respond to complaints of caregiver discrimination efficiently and
effectively;
• Protect against retaliation;
• Implement recruitment practices that target individuals with caregiving
responsibilities;
• Identify and remove barriers to re-entry.

When employers fail to prevent FRD, they not only create a culture of fear,
but they also shortchange themselves to the extent that they potentially lose tal-
ented, loyal employees over illogical myths and stereotypes. Moreover, FRD not
only impedes productivity through morale problems, it can also affect the career
advancement of women in particular, ensuring that they are unable to reach
higher-paying, upper-level jobs (Bock Mullins 2012).

The employment of LGBTQs

As noted at the beginning of this chapter, the U.S. Supreme Court ruled in
United States v. Windsor (2013) that it is unconstitutional to define marriage as it
was in the 1996 federal law, Defense of Marriage Act, as a “legal union between
one man and one woman.” While this case does not engage employment matters,
it may serve as a bellwether for the treatment of LGBTQs in this nation.6 For
example, as a result of this decision, a number of states across the country began
to allow same-sex marriages.7 Moreover, it has personnel implications in that it
opens the doors for the extension of benefits to same-sex marriages (for example,
social security; health insurance; tax advantages). Also, the Ninth Circuit Court
of Appeals issued a ruling that gays and lesbians may not be excluded from juries
based on sexual orientation.8 In addition, in November 2013, the U.S. Senate
voted to consider for the first time since 1996, the enactment of the Employment
Nondiscrimination Act, which would outlaw employment discrimination based
on sexual orientation and gender identity. In short, a cultural shift in the manner
in which this nation treats LGBTQs may be in the offing.9
While there is no federal protection for LGBTQ employees, a number of
states have enacted laws to protect them in the workplace, as seen in Table 9.3.
In addition, over 137 cities and counties have passed laws or developed poli-
cies to prohibit discrimination on the basis of gay, lesbian, bisexual, or gender
identity for both public and private employees. While most of these locali-
ties are in states that prohibit gender identity discrimination, some are not
204 Norma M. Riccucci

TABLE 9.3 Antidiscrimination Laws for LGBTs (lesbian, gay, bisexual, transgendered)

Public and private sectors Public sector only Gender identity

California Delaware California
Colorado Indiana Colorado
Connecticut Michigan Connecticut
District of Columbia Montana District of Columbia
Hawaii Pennsylvania Hawaii
Illinois Illinois
Iowa Iowa
Maine Massachusetts
Maryland Maine
Massachusetts Minnesota
Minnesota New Jersey
Nevada New Mexico
New Hampshire Nevada
New Jersey Oregon
New Mexico Rhode Island
New York Vermont
Oregon Washington State
Rhode Island
Vermont
Washington State
Wisconsin
Sources: FindLaw n.d.; Human Rights Campaign 2013.
Note: Gender identity refers to self-identification, apart from biological sex or gender.

(for example, Miami Beach and Tampa, Florida; Tucson, Arizona; Boise,
Idaho; Louisville, Kentucky; Charleston, South Carolina; Austin, Dallas; and
El Paso, Texas).
Research on LGBTQs is certainly impeded by the lack of reliable data (Nor-
man-Major and Becker 2013; Borrego and Johnson III 2013). Notwithstand-
ing, scholars such as Greg Lewis, Charles Gossett, and Rod Colvin have made
extraordinary progress in advancing our knowledge about the employment status
of LGBTQs.10 Lewis in particular has been a pioneer here, addressing this issue
from a variety of perspectives. In an early piece, when the subject was not in
vogue, Lewis (1997) offered an excellent examination of the federal govern-
ment’s policies toward gays and lesbians. He finds that to the extent to which the
employment rights of gays and lesbians was politicized, progress was subverted.
As he points out, for example:

When the Republicans attacked the Democrats for being soft on Com-
munism in the 1950s, homosexuals became an easy target for both par-
ties because “sex perverts” were so widely despised that not even the
American Civil Liberties Union would stand up for them. The politicians
strengthened laws and pushed the bureaucracy to enforce them, and the
 From Sameness to Differentness 205

bureaucratic structure—especially the Civil Service Commission and the

FBI—continued to enforce the exclusion of gay employees long after the
political issue had died down.
(Lewis 1997, 394)

The politicization of gays in the military later led to the infamous “Don’t Ask,
Don’t Tell” policy on gays serving in the military.
In a more recent study, Lewis et al. (2011) examine the employment status of
lesbians, gays, and bisexuals (LGBs) in federal, state, and local government work-
forces. Based on a 5 percent sample of the 2000 Census, they find, for example, that

[p]artnered lesbians are at least as likely as heterosexually partnered women

to hold government jobs, and partnered gay men are as likely as other
partnered men to work for state governments. Partnered LGBs’ share of
management jobs in SLGs [state and local governments] is higher than their
share of either SLG or private sector employment.
(Lewis et al. 2011, 173–175)

They also make the important point that without reliable data, other critical
questions, such as whether passive representation of LGBs leads to active repre-
sentation, cannot be answered.
Interestingly, the U.S. Supreme Court has ruled that same-sex sexual harass-
ment is actionable under Title VII, opining that the gender of the harasser is not
the issue, rather it is the action of harassment, or the act of sex (see Oncale v. Sun-
downer Offshore Services 1998). Yet, LGBTQ employees filing sexual harassment
claims under Title VII for gender non-conformity have been struck down (see
Dawson v. Bumble & Bumble 2005). Here, plaintiffs argue that they are the subject
of sexual harassment for not conforming to traditional gender stereotypes.11 Ulti-
mately, as Guy and Fenley (2014) point out, “LGBTQ individuals are left with
little protection against sexual harassment because orientation is an unprotected
status and legitimate charges of sex harassment may be trumped by claims that
discrimination stemmed from sexual orientation, not sex.”
As cultures of organizations change, and individuals feel safe to express who
they are, levels of differentness will certainly increase in the workplace. This, in
turn, will allow for the collection of more reliable data on LGBTQ employees
in public and private sector workforces. Without this shift, research on this issue
and tracking the progress that LGBTQs are making in the workplace will be
greatly deterred.

Conclusion
Citizens of this nation are becoming increasingly different. In effect, the defini-
tion of differentness continues to expand. Indeed, moving into the next fifty
206 Norma M. Riccucci

years or so, it will become more difficult to “categorize” people by gender, race,
ethnicity, nationality, and sexuality. Government employers are thus challenged
to ensure differentness in their workforces, as a key mission of government is
to provide services to all individuals. While progress has been made in some
realms (for example, overall employment of women and people of color), much
more is needed in, as presented here, such areas as promotions, pay, FRD (and
accompanying family-leave policies), and the employment and equal treatment
of LGBTQs. While proaction by the executive branch is critical, so too will be
progressive actions by Congress and the U.S. Supreme Court.

Notes
1 These figures do not illustrate the lack of progress women and people of color have
made in certain local jobs such as in firefighting and police. In particular, women
represent only 3.6 percent of the nation’s firefighters, and while people of color have
made some progress, they continue to lag in terms of promotions to upper-level posts
in the uniformed services (see, for example, Riccucci and Saldivar 2014).
2 The data could not be broken down by race/ethnicity and gender.
3 Calvert (2010) points out that 88 percent of the plaintiffs in FRD cases are women.
4 The Pregnancy Discrimination Act of 1978 amended Title VII to prohibit discrimina-
tion against employees on the basis of pregnancy and childbirth.
5 Four states—Alaska, Connecticut, New Jersey, and Oregon—and the District of
Columbia enacted laws expressly prohibiting FRD. In addition, at least sixty-seven
localities in twenty-two different states have local laws that prohibit FRD (see Williams
et al. 2012).
6 However, it should be noted that in January 2014, the High Court issued an order
halting same-sex marriages in Utah while the state appeals a district court decision that
ruled the state’s ban on gay marriage violated the constitutional rights of gays.
7 As of the time of writing there are seventeen states that permit such marriages.
8 Smithkline Beecham Corporation v. Abbott Laboratories (2014).
9 As of the time of writing, however, thirty-two states have state laws or constitutional
amendments limiting marriage to a woman and a man.
10 See, for example, Lewis 1997, 2001, 2010; Gossett 2012; Colvin 2007, 2012; and Lewis
et al. 2011.
11 But see the U.S. EEOC’s rulings in Veretto v. Donahoe (2011) and Macy v. Holder (2012).
In Veretto, the EEOC ruled that sex stereotyping can result when an assumption is
made that men can only marry women. Thus, a male U.S. Postal worker who was
harassed when he announced he was marrying his male partner could claim discrimi-
nation and harassment under Title VII. In Macy, the EEOC found for an employee
who was discriminated against based on being transgendered.

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