By Christopher Lee
Washington Post Staff Writer
Wednesday, May 25, 2005
Special counsel Scott J. Bloch told a Senate panel yesterday that he lacks the legal authority to enforce the Bush administration's ban on discrimination against federal employees based on sexual orientation.
If a federal manager fires, reassigns or takes some other action against an employee simply because that employee is gay, there is nothing in federal law that would permit the Office of Special Counsel to protect the worker, Bloch testified before the Senate Homeland Security and Government Affairs subcommittee on oversight of government management, the federal workforce and the District of Columbia.
"We are limited by our enforcement statutes as Congress gives them," Bloch said, responding to a question from Sen. Carl M. Levin (D-Mich.). "The courts have specifically rejected sexual orientation as a class protection."
Bloch made his remarks in a nearly two-hour hearing into his controversial 17-month tenure as head of the independent federal agency charged with safeguarding the federal merit system and protecting whistle-blowers from retaliation.
Since taking office in January 2004, the Bush appointee has been accused of failing to enforce a long-standing policy against bias in the federal workplace based on sexual orientation, unnecessarily reorganizing the OSC to try to run off internal critics, and arbitrarily dismissing some personnel complaints and whistle-blower disclosures in an effort to claim reductions in backlogs.
He has denied such allegations and argued that he has made the agency more efficient at processing cases and, at the same time, more receptive to whistle-blowers and federal workers who have suffered unfair treatment.
The controversies -- especially last year's flap over sexual orientation discrimination -- have brought unflattering attention to an agency that typically has worked outside the limelight. In April 2004, the White House took the unusual step of clarifying its position on protections for gay men and lesbians in government workplaces, protections observed for three decades.
"Longstanding federal policy prohibits discrimination against federal employees based on sexual orientation," the White House said in a statement. "President Bush expects federal agencies to enforce this policy and to ensure that all federal employees are protected from unfair discrimination at work."
Levin reminded Bloch of that policy yesterday. "That is not something that you believe is binding on you?" he asked.
"It is binding on me," Bloch said, "but it is not something I can prosecute in my agency. . . . I am limited by the enforcement statutes that you give me."
Federal civil rights laws ban employment discrimination on the basis of race, religion, sex, age, national origin, disability and political affiliation. Sexual orientation is not among these "protected classes."
When Levin asked if Bloch would recommend that Congress clarify the law so that protections for federal employees extend to sexual orientation, Bloch declined to take a position.
Later, OSC spokeswoman Cathy Deeds said the agency does accept claims alleging discrimination based on sexual orientation and evaluate them to see if some other standard applies, such as a prohibition on taking action against an employee for his or her off-duty conduct.
Senate panel members of both parties admonished Bloch for his handling this year of an internal reorganization in which 12 career employees were told that they would be involuntarily transferred to new assignments in Dallas; Oakland, Calif.; and a soon-to-opened field office in Detroit. Bloch initially gave the workers 10 days to accept the moves or be terminated, and he extended the deadline only after receiving complaints from some lawmakers. Several employee advocacy groups accused Bloch of targeting workers who had been critical of his management style -- allegations Bloch strongly denied.
Subcommittee Chairman George V. Voinovich (R-Ohio), ranking minority member Daniel K. Akaka (D-Hawaii) and panel member Frank Lautenberg (D-N.J.) said that Bloch had been insensitive and that the OSC should be a model agency in its treatment of federal employees.
"I hope that because of this incident you've learned something in terms of taking a little more time in doing it," Voinovich told Bloch.
"Yes, Senator," Bloch said. "I'm learning new things every day."