Legislation expressly barring federal agencies from discrimination on the basis of sexual orientation was introduced in the House on June 30. The Clarification of Federal Employment Protections Act, HR-3128, would amend the Civil Service Reform Act of 1978 to add sexual orientation discrimination to the list of prohibited personnel practices at 5 USC §2302(b)(1). The present statute bars discrimination on the bases of race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation as prohibited under any law, rule, or regulation, and the bill would add a new section (f) “on the basis of sexual orientation.”
The Special Counsel, Scott J. Bloch, whose office is responsible for prosecuting agencies for prohibited personnel practices, stirred up a controversy soon after assuming his position as head of the Office of Special Counsel (OSC), when he removed references to sexual orientation discrimination on OSC’s website. Mr. Bloch’s interpretation was contrary to the official position of the White House which stated that “[l]ongstanding federal agency policy prohibits discrimination against employees based on sexual preference.” Although the White House also stated that “President Bush expects federal agencies to enforce this policy and to ensure that all federal workers are protected from unfair discrimination at work,” there is presently no specific statutory protection for employees complaining about sexual orientation discrimination.
In a Senate subcommittee hearing on May 24, 2005, Mr. Bloch told members that the OSC will not pursue sexual orientation discrimination complaints where discrimination occurred solely on the basis of the employee’s homosexual status. However, he would pursue cases as a result of discrimination arising out of an employee engaging in conduct manifesting his or her sexual orientation and has previously indicated that he would include “imputed private conduct” in a press release of April 8, 2004. Mr. Bloch relied upon 5 USC § 2302(b)(10) which prohibits discrimination “on the basis of conduct which does not adversely affect the performance of the employee or the performance of others.” This is the provision of law which is typically used where off-the-job conduct results in a personnel action.
Given the controversial nature of the proposed legislation, it is not likely to pass in the 109th Congress. There is a greater likelihood of future passage as it garners more congressional and public support. As of now, there are 16 co-sponsors.
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