Legislation would protect employees from sexual orientation discrimination

Legislation that would guard federal employees from discrimination on the basis of sexual orientation was introduced last week with the support of 11 lawmakers.

The bill, known as the Clarification of Federal Employment Protection Act (H.R. 3128), is in response to Senate testimony by Special Counsel Scott Bloch when he stated that the Office of Special Counsel is limited by law in its ability to protect gay employees from discrimination on the basis of sexual orientation.

The legislation, proposed by House Government Reform Committee ranking member Henry A. Waxman, D-Calif., would amend the 1978 Civil Service Reform Act affirming "that federal employees are protected from discrimination on the basis of sexual orientation and to repudiate any assertion to the contrary."

"At a time when our federal employees are working tirelessly on behalf of the nation, we should be doing our utmost to ensure that all are protected against discrimination," Waxman said in a statement. "Unfortunately, the Bush administration appears to have abandoned a long-standing bipartisan interpretation of the law that protects federal employees from discrimination based on sexual orientation."

The proposed law, if passed by Congress and signed by President Bush, would add to the list of prohibited forms of discrimination against employees or potential employees that include race, gender, national origin, age, handicaps, marital status and political affiliation.

As chief of the Office of Special Counsel, Bloch is charged with heading up independent investigations and prosecutions of merit system violations in the federal workplace. He maintained before a panel of senators on May 24 that federal law does not give him the authority to prosecute discrimination against federal employees for their sexual orientation status.

"We do not see sexual orientation as a term for class status anywhere in statute or in the legislative history or case law, in fact, quite contrary to it," Bloch said at the hearing. "We are limited by our enforcement statutes as Congress gives them ... The courts have specifically rejected sexual orientation as a status protection under our statutes."

In response to an inquiryon the proposed legislation, OSC officials referred a reporter to Bloch's Senate testimony and an April 2004 agency release that announced after a two-month review that OSC had concluded it has the authority to prosecute cases of discrimination on "actual conduct."

While the Bush administration has maintained a position banning discrimination against federal employees on the basis of sexual orientation, Bloch ordered the review to determine the legality of the agency's policy in prosecuting cases of sexual discrimination in agencies and had the information on filing sexual-orientation discrimination complaints removed from the agency's Web site and brochures.

Not included in the announcement was Bloch's viewpoint on case law supporting sexual orientation discrimination cases, which he believes blocks the agency from prosecuting cases involving a federal manager firing or disciplining an employee merely for being a homosexual, according to his testimony. If the manager took action against the employee for actions, in private or public, the agency would have the authority to prosecute.

The information on filing sexual-orientation discrimination complaints has not been returned to the agency Web site.

OSC spokeswomen Cathy Deeds said that Congress has twice tried to pass legislation that would give homosexuals "protected class status," allowing OSC to enforce Bush's policy forbidding sexual orientation discrimination, but both attempts failed.

"[I]t is now in the hands of Congress," Deeds wrote in an e-mail to Government Executive.

Co-sponsors of the bill include Reps. Tammy Baldwin, D-Wis.; Danny K. Davis, D-Ill.; Eliot L. Engel, D-N.Y.: Mark Foley, R-Fla.; Barney Frank, D-Mass.; Chris Van Hollen, D-Md.; Steny H. Hoyer, D-Md.; Jim Kolbe, R-Ariz.; Christopher Shays, R-Conn.; and Del. Eleanor Holmes Norton, D-D.C.