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LOU CHIBBARO JR.
Friday, February 20, 2004
The recently appointed director of a federal agency responsible for protecting
federal employees from job discrimination startled gay activists this week when
he said he was reviewing whether it is illegal for the government to discriminate
against federal employees based on their sexual orientation.
Scott Bloch, director of the U.S. Office of Special Counsel, an independent
investigative and prosecutorial agency, was quoted by the Washington Post in
a Feb. 18 article as saying he was uncertain whether a provision of the civil
service law applies to federal workers who believe they are being treated unfairly
because they are gay, bisexual or straight.
Bloch, an attorney and an appointee of President Bush, replaced gay attorney
Elaine Kaplan as head of OSC in January. President Clinton had appointed Kaplan,
whose term ended last July.
Bloch served as deputy director and counsel to the Task Force for Faith-Based & Community
Initiatives at the Justice Department at the time Bush nominated him for a
five-year term as head of OSC. The Senate confirmed Bloch’s nomination
on Dec. 9.
Bloch’s comments to the Post on OSC’s role in addressing gay-related
issues came less than a month after he removed, in an unannounced action, all
information on OSC’s Web site and internal documents stating that sexual
orientation discrimination in the federal workforce is illegal. Information
classifying sexual orientation discrimination as a “prohibited personnel
practice” had been included in various OSC documents and brochures since
1995.
“It is wrong to discriminate against any federal employee, or any employee
based on discrimination,” the Post quoted Bloch as saying. But the Post
said Bloch added, “It is wrong for me, as a federal government official,
to extend my jurisdiction beyond what Congress gives me in the actual interpretation
of the statutes.”
“This is truly disturbing and scary,” said Kitty Durham, a management
analyst with the U.S. Department of Transportation and a former board member
of the gay federal employees group Federal GLOBE.
“He appears to be setting the stage to overturn nearly 30 years of interpretation
of civil service law,” Durham said.
Durham and veteran D.C. gay activist Frank Kameny, a recognized expert on
federal employment policies pertaining to gays, said a government policy declaring
that anti-gay job discrimination is illegal in the federal workforce has been
in place since 1975. The two noted that every U.S. president since that time,
including the administrations of Republicans Gerald Ford, Ronald Reagan, and
George H. W. Bush, has adhered to this policy.
Bloch did not return Blade calls seeking comment on the sexual orientation
issue. OSC press spokesperson Mary Monahan said she would attempt to arrange
a Blade interview with Bloch about the sexual orientation issue but did not
do so by press time.
Kameny said Bloch would be “dead wrong” if he claims existing
law does not give his agency authority to uphold the government’s longstanding
policy of banning sexual orientation discrimination against federal employees.
The U.S. Office of Personnel Management, which sets policies on federal personnel
matters, continues to list sexual orientation discrimination as a prohibited
practice on its Web site. However, OSC, rather than OPM, has served as the
lead agency in enforcing the policy of non-discrimination based on sexual orientation.
The National Treasury Employees Union, which represents 150,000 federal employees
in several agencies and departments, broke the news about OSC’s removal
of references to sexual orientation discrimination from its internal documents
and Web site in a Feb. 12 news release.
Among other things, the NTEU noted that OSC removed the sexual orientation
information from its Web site and from a brochure and flier, training slides,
a press release, and a form used by employees to lodge discrimination complaints.
Colleen M. Kelley, the NTEU president, sent Bloch a letter demanding to know
whether OSC is “backing away from its duty to enforce complaints of sexual
orientation discrimination,” according to the news release.
“If the recent deletions to the OSC Web site indicate that OSC will
no longer enforce these basic discrimination protections, I would appreciate
a statement of your legal basis for taking that position,” Kelley said
in her letter to Bloch.
A spokesperson for the NTEU said Kelley had not received a reply from Bloch
as of late this week.
Federal GLOBE issued a statement saying the decision to remove OSC references
to sexual orientation discrimination appeared to be “political pandering
to the conservative right.”
The Federal GLOBE statement says OSC’s actions send a “chilling
message” that the office may be ignoring a federal personnel law that
has been used since 1980 to define sexual orientation discrimination as a “prohibited
personnel practice” in the federal workforce.
“At the same time, even more worrisome,” the GLOBE statement says, “it
also sends the silent, but implicit message that it is permissible to discriminate
against a federal employee because of his or her sexual orientation.”
According to NTEU and Federal GLOBE, among the OSC documents that no longer
mention sexual orientation discrimination is a widely distributed, two-page
flier called “Your Rights As A Federal Employee.”
Kelley said she was especially troubled that OSC also removed from its Web
site a June 2003 news release announcing the settlement of a case alleging
sexual orientation discrimination against an applicant for a job with the Internal
Revenue Service. The OSC news release had stated that IRS officials took disciplinary
action against a supervisor in connection with the case.
“Removal of this news release, in particular, seems to signal a deliberate
decision to obscure the history of OSC’s enforcement actions,” Kelly
said.
The then-U.S. Civil Service Commission first announced a policy of non-discrimination
in federal hiring and promotions based on sexual orientation in 1975, following
a string of federal court rulings in the 1960s and 1970s overturning firings
of gay federal employees.
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