Official Says Law
Doesn't Cover Gays
Counsel Cites Lack of
Authority to Enforce Discrimination Ban
By Christopher Lee,
washingtonpost.com from the Web, May 25, 2005
Special counsel Scott J. Bloch told a
Senate panel yesterday that he lacks the legal authority to enforce the Bush
administration's ban on discrimination against federal employees based on sexual
orientation.
If a federal manager fires, reassigns or takes some other action against an
employee simply because that employee is gay, there is nothing in federal law
that would permit the Office of Special Counsel to protect the worker, Bloch
testified before the Senate Homeland Security and Government Affairs
subcommittee on oversight of government management, the federal workforce and
the District of Columbia.
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Special counsel
Scott J. Bloch told a Senate subcommittee: "The courts have specifically
rejected sexual orientation as a class protection."
(By Lois Raimondo -- The Washington Post) |
"We are limited by our enforcement
statutes as Congress gives them," Bloch said, responding to a question from Sen.
Carl M. Levin (D-Mich.). "The courts have specifically rejected sexual
orientation as a class protection."
Bloch made his remarks in a nearly two-hour hearing into his controversial
17-month tenure as head of the independent federal agency charged with
safeguarding the federal merit system and protecting whistle-blowers from
retaliation.
Since taking office in January 2004, the Bush appointee has been accused of
failing to enforce a long-standing policy against bias in the federal workplace
based on sexual orientation, unnecessarily reorganizing the OSC to try to run
off internal critics, and arbitrarily dismissing some personnel complaints and
whistle-blower disclosures in an effort to claim reductions in backlogs.
He has denied such allegations and argued that he has made the agency more
efficient at processing cases and, at the same time, more receptive to
whistle-blowers and federal workers who have suffered unfair treatment.
The controversies -- especially last year's flap over sexual orientation
discrimination -- have brought unflattering attention to an agency that
typically has worked outside the limelight. In April 2004, the White House
took the unusual step of clarifying its position on protections for gay men and
lesbians in government workplaces, protections observed for three decades.
"Longstanding federal policy prohibits discrimination against federal employees
based on sexual orientation," the White House said in a statement.
"President Bush expects federal agencies to enforce this policy and to ensure
that all federal employees are protected from unfair discrimination at work."
Levin reminded Bloch of that policy yesterday. "That is not something that
you believe is binding on you?" he asked.
"It is binding on me," Bloch said, "but it is not something I can prosecute in
my agency. ... I am limited by the enforcement statutes that you give me."
Federal civil rights laws ban employment discrimination on the basis of race,
religion, sex, age, national origin, disability and political affiliation.
Sexual orientation is not among these "protected classes."
When Levin asked if Bloch would recommend that Congress clarify the law so that
protections for federal employees extend to sexual orientation, Bloch declined
to take a position.
Later, OSC spokeswoman Cathy Deeds said the agency does accept claims alleging
discrimination based on sexual orientation and evaluate them to see if some
other standard applies, such as a prohibition on taking action against an
employee for his or her off-duty conduct.
Senate panel members of both parties admonished Bloch for his handling this year
of an internal reorganization in which 12 career employees were told that they
would be involuntarily transferred to new assignments in Dallas; Oakland,
Calif.; and a soon-to-opened field office in Detroit. Bloch initially gave
the workers 10 days to accept the moves or be terminated, and he extended the
deadline only after receiving complaints from some lawmakers. Several
employee advocacy groups accused Bloch of targeting workers who had been
critical of his management style -- allegations Bloch strongly denied.
Subcommittee Chairman George V. Voinovich (R-Ohio), ranking minority member
Daniel K. Akaka (D-Hawaii) and panel member Frank Lautenberg (D-N.J.) said that
Bloch had been insensitive and that the OSC should be a model agency in its
treatment of federal employees.
"I hope that because of this incident you've learned something in terms of
taking a little more time in doing it," Voinovich told Bloch.
"Yes, Senator," Bloch said. "I'm learning new things every day."
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