Following a two-month policy review, officials at the independent agency responsible for protecting federal employees against illegal personnel practices have decided to continue accepting complaints of sexual orientation discrimination.
Legal experts determined that the Office of Special Counsel has the authority to investigate claims of sexual orientation discrimination, even when the alleged discrimination is based on inferred private behavior, said Scott Bloch, the agency's leader, in a statement.
Under Bloch's predecessor, Elaine Kaplan, OSC considered all forms of sexual orientation discrimination in the federal workplace illegal, because the United States Code prohibits discrimination on the basis of "conduct which does not adversely affect the performance of the employee or applicant."
But when Bloch took office in January 2004, he asked his advisers to reexamine the legal meaning of "conduct," to ensure that the term encompasses unobservable, private actions. OSC clearly has authority to protect government workers from discrimination for attending gay rights rallies or engaging in other public behavior, he said. But discrimination stemming from simple knowledge of a colleague's sexual orientation, or inferred conduct within the home, falls in a gray area, he said.
"Sometimes lawyers get accused of splitting hairs, but it's an important principle of law that you only enforce [statutes] according to what Congress wrote and intended," Bloch said in a March 4 interview with Government Executive.
Bloch called for a review of his predecessor's policy and ordered the removal of all information on filing complaints of sexual-orientation discrimination from OSC's Web site and brochures. This move angered unions, advocacy groups and several members of Congress.
The timing of Bloch's decision also fueled concerns. He removed the information soon after President Bush had sparked a debate on gay marriage. But Bloch asserted that he sought legal advice on OSC's handling of sexual orientation discrimination complaints as part of a broader reexamination of policies he inherited. The decision did not relate to broader discussions of gay marriage, or hint at a plan for "retracting anybody's rights," he said.
In a March 1 letter to Bloch, Kaplan wrote, "I do not question your authority to review any of the policies or interpretations followed during my tenure, or to reverse them entirely if in your judgment they were incorrect." But in correspondence with lawmakers, she said Bloch should not seek to draw a distinction between actual and inferred conduct. Such an interpretation of the law would be "completely illogical and indefensible," she said.
National Treasury Employees Union leader Colleen Kelley applauded Bloch's decision to stick with the "longstanding government view that discrimination based on sexual orientation is prohibited in the federal workplace." His decision to remove sexual orientation discrimination resources from OSC's Web site and brochures "generated confusion and anxiety in the federal workplace for no good reason," Kelley said.
Bloch's announcement is an "encouraging sign," said Cheryl Jacques, head of the Human Rights Campaign, a Washington-based advocacy group. "We look forward to the restoration of full protection."
OSC will review and revise information on the Web site to "ensure that employees are fully aware of the protections provided," Bloch said in his statement.
Kelley noted that she will watch "carefully" to ensure that OSC posts "informative material" back on the Web. Rob Sadler, a spokesman for Federal GLOBE, a gay, lesbian and bisexual employee support group, said he will also look to make sure the documents reappear.
But Sadler praised Bloch's statement. "We couldn't have asked for more," he said. The statement shows "unequivocal" support for preventing sexual orientation discrimination in the federal workplace, he said. "It seems to put this issue to rest."
OSC protects federal employees against illegal personnel practices, including discrimination and whistleblower retaliation, and reviews allegations of government waste, fraud and abuse.