Mar 23rd, 2004, 02:43 PM
Administration Prepares to Discriminate Against Gays
OSC to study whether bias law covers gays
By TIM KAUFFMAN, Federal Times
A gay employee who is fired or demoted for attending a gay pride rally would receive protection from the Office of Special Counsel. But the same employee would have no recourse at OSC if he was fired or demoted simply for being gay.
This is new Special Counsel Scott Bloch’s initial reading of a 1978 law intended to protect employees and job applicants from adverse personnel actions taken against them for reasons unrelated to their job performance. In his interpretation, Bloch is making a distinction between one’s conduct as a gay or lesbian and one’s status as a gay or lesbian.
“People confuse conduct and sexual orientation as the same thing, and I don’t think they are,” Bloch said in a March 10 interview with Federal Times.
Bloch, who began a five-year term as special counsel in January, said he does not believe the list of prohibited personnel actions outlined in the 1978 Civil Service Reform Act covers discrimination based on sexual orientation.
It is a marked departure from how the previous special counsel, Elaine Kaplan, enforced the law and appears to contradict the Office of Personnel Management’s guidance to agencies and employees regarding workplace discrimination based on sexual orientation. OPM has held since 1980 that discrimination based on sexual orientation is covered as a prohibited personnel practice under the 1978 reform act and can be appealed to OSC. The act covers all conduct “which does not adversely affect” performance, although it doesn’t specifically list sexual orientation.
Bloch said he does not believe it is correct to equate conduct based on sexual orientation with sexual orientation itself. Such a link would mean gays, lesbians and bisexuals are covered as a protected class, even though they are not protected under the nation’s civil rights laws.
“When you’re interpreting a statute, you have to be very careful to interpret strictly according to how it’s written and not get into loose interpretations,” Bloch said. “Someone may have jumped to the conclusion that conduct equals sexual orientation, but they are essentially very different. One is a class . . . and one is behavior.”
Bloch’s predecessor, Washington attorney Kaplan, called his reading of the law “dead wrong.”
“The legal position that he is taking, that there is some distinction between discrimination based on sexual orientation and discrimination based on conduct, is absurd,” Kaplan said. “It is a distinction that has not been made by OPM, the Justice Department or anybody else in the executive branch.”
Bloch said a senior OSC staff member first raised the issue shortly after Bloch took office in January by questioning a slide show presentation, used in training sessions with employees at federal agencies, that referred to OSC’s enforcement of sexual orientation discrimination. A couple of weeks later, Bloch said he decided to remove references to sexual orientation from the slide show and all other OSC materials posted online after reviewing the law and discovering that sexual orientation isn’t mentioned.
“I do not feel it’s appropriate to educate the public about something the law does not provide,” he said. “This office is about good government. If we violate the law and start putting our own policy preferences in places where the law doesn’t provide that, based on some other office’s interpretation of something, then that’s a problem, and I’m very concerned about that.”
Kaplan said Bloch seems intent on narrowing the government’s long-held interpretation of the law to exclude gay, lesbian and bisexual employees from job protections.
“It basically suggests that if you’re discriminated against because you’re gay, that may not be illegal,” she said.
Such a move also appears to contradict OSC’s mission, which is to protect federal employees from personnel actions unrelated to job performance, Kaplan said.
“The purpose of all these rules is to ensure decisions are made on the basis of merit. To split these kinds of hairs to me is inconsistent with the mission of the agency,” she said.
Bloch said he is initiating a review of the issue and plans to meet with OPM and congressional staff to hear their opinions before making a final decision on how his office will handle complaints alleging sexual orientation discrimination. The review will not get completely under way until next month, when Bloch’s senior legal adviser begins work, he said.
There are two or three cases currently under review by the office in which employees argue they were discriminated against because of their sexual orientation, Bloch said. He would not say whether any decision in those cases would be postponed until his office’s legal review is completed.
The removal of all materials referencing sexual orientation, first disclosed by the National Treasury Employees Union last month, sparked sharp criticism from lawmakers. They questioned whether Bloch would protect employees against discrimination related to their sexual orientation, as he pledged to do in statements to senators and their staffs during the nomination process.
Bloch said his comments to senators during his nomination process were consistent with the action he has taken since assuming office.
“I’m not backtracking. I’ll enforce the law equally for everybody. I just won’t give special class protection unless the law requires that,” he said.
Bloch earned his law degree from the University of Kansas and was a partner in a Kansas law firm, where he specialized in civil rights law, employment law and legal ethics, according to the White House. Before he was nominated as special counsel, Bloch was deputy director of the Justice Department’s Task Force for Faith-based and Community Initiatives.