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Frustrated at Special Counsel Scott Bloch's failure to answer inquiries about a controversial review of his office's policies on sexual-orientation discrimination, several Democratic lawmakers have drafted a letter to his boss -- President Bush.

In the letter, currently circulating in the House and Senate, lawmakers asked Bush to pledge that he will force his appointees, including Bloch, to uphold laws protecting federal employees from discrimination "based on matters unrelated to their work." Since the 1980s, government officials have interpreted these laws as prohibiting sexual-orientation discrimination in the federal workplace.

Advocacy groups, federal employee unions and a number of lawmakers are concerned that Bloch is on the verge of setting a policy that changes that well-established interpretation. In mid-February, not long after he arrived at the Office of Special Counsel, Bloch deleted information about filing complaints of sexual-orientation discrimination from OSC's Web site and brochures.

Bloch later explained that he removed the information to give himself time to review the legal basis for OSC's past policy on handling allegations of sexual-orientation discrimination. But Reps. Barney Frank, D-Mass.; Eliot Engel, D-N.Y.; George Miller, D-Calif.; and Tammy Baldwin, D-Wis., and Sen. Barbara Boxer, D-Calif., said at a press conference Wednesday that they view his actions, and subsequent statements to the press, as a signal that he will reverse OSC's policy of protecting gay, lesbian and bisexual federal employees from discrimination.

OSC has responsibility for protecting federal employees and job applicants against prohibited personnel practices, including discrimination.

In their letter to Bush, lawmakers said Bloch has indicated that he will draw a distinction between a federal employee's "conduct" and sexual orientation. Under this interpretation, OSC would prosecute managers accused of discriminating against government workers for attending such events as gay rights parades or gay rights rallies, but would not protect employees "demoted or otherwise penalized" simply because they are gay.

The lawmakers called Bloch's apparent interpretation "bizarre" and "tortured." Bloch's predecessor, Elaine Kaplan, told lawmakers she disagrees "profoundly" with the direction Bloch is heading. By drawing a distinction between "conduct" and actual sexual "orientation," Bloch has "confused the federal workforce and made OSC the object of ridicule," she wrote in a March 30 letter explaining her views on the issue.

"Many legitimately wonder why it would be permissible to discriminate against employees because they are gay, but illegal to discriminate against them because they have sexual relations with others of their own gender," Kaplan wrote. "They may also scratch their heads in bewilderment as to the practical difference between the two."

OSC did not respond to calls for comment on these criticisms. Bloch has not released an official statement on how he will interpret the law.

In a March 4 interview with Government Executive, Bloch explained that OSC's policy on complaints of sexual-orientation discrimination is one of many policies under review. For instance, officials also are reconsidering OSC's jurisdiction over complaints from Transportation Security Administration employees, Bloch said.

"This is not an attempt to retract anybody's rights or to discriminate against any group in any way," Bloch said, adding that he has limited leeway to interpret the law. "I don't have the ability to create or carve out special jurisdiction," he said. "If the legal review determines that I have jurisdiction [over complaints of sexual-orientation discrimination] that's what I will enforce. Whatever Congress writes, I will enforce that."

White House spokesman Allen Abney declined to comment on Bloch's actions, but said the administration will uphold long-standing policy prohibiting sexual-orientation discrimination in the federal workplace. "President Bush expects federal agencies to enforce this policy and to ensure that all federal employees are protected from unfair discrimination," he said Wednesday.

Up in the Air

The American Federation of State, County and Municipal Employees filed an unfair labor practices charge Wednesday against the Federal Aviation Administration over an unresolved contract dispute.

AFSCME Council 26 asked the Federal Labor Relations Authority to require FAA Administrator Marion Blakey to settle negotiations over the first-ever contract for about 2,000 employees working at the agency's headquarters in Washington.

AFSCME spokesman Jay Power said the FAA is refusing to negotiate the contract unless the union withdraws a lawsuit it filed with the Court of Appeals for the Federal Circuit in 2001.

"Since the early days of collective bargaining, bargaining in good faith has not been based on conditions or requirements of either party to return to the table," Power said. "AFSCME Council 26 requested to return to the bargaining table, in good faith. However, Ms. Blakey, in direct opposition to statements made during her confirmation, has decided that good faith no longer works for the FAA."

FAA spokesman Greg Martin said the agency recognizes the union's right to continue litigation, but does not believe contract negotiations can move forward while a lawsuit is pending.

"We'd welcome a chance to resolve this at the bargaining table rather than in a court room," Martin said. "It is not a productive use of time to negotiate while the union seeks to impose a contract on us through litigation. Until that is determined, it would be a waste of time for both parties."

Workers at FAA headquarters ratified their contract in early 2001. At the time, FAA officials said the Office of Management and Budget did not approve of the contract's terms and refused to sign it. In response, AFSCME filed a lawsuit with FLRA in 2001 challenging the authority of OMB over the contract. FLRA ruled against the union, which prompted an appeal to the federal circuit court. The appeal remains in litigation and employees at FAA headquarters have not had an approved contract.

The last time the union and FAA met to negotiate the contract was in 2001.

"The union believes the decision by the FLRA will support the union's position that Ms. Blakey has refused to bargain in good faith, and will order the FAA to enter in to good faith negotiations," Power said.

COMMENTS

• Gee, isn't that the exact opposite of "Don't Ask, Don't Tell" that Kaplan's President put in place? So now what our U.S. government is saying is that if you wear a uniform, then you can be gay, you just can't act gay. But if you wear civilian attire, you can act gay, but you are not protected if you just "are" gay. Yep, that could be confusing, especially to those civilian employees who are also in the Reserves and National Guard . GovExec.com reader Posted April 3, 2004 5:17 PM