In the wake of testimony by the director of the Office of Special Counsel (OSC), Scott Bloch, before a Senate subcommittee, where he said he cannot enforce government anti-discrimination regulations for gay federal employees, several major LGBT organizations are calling for his resignation.
OSC investigates complaints of discrimination based on an employee’s status, political affiliation and for revealing government waste, fraud or abuse—what is commonly called whistle blowing.
Bloch testified on May 24 before the Management, Federal Workforce and District of Columbia subcommittee of the Homeland Security and Governmental Affairs committee.
The Log Cabin Republicans (LCR) immediately criticized Bloch after the hearing. LCR Spokesman Chris Barron said, “Scott Bloch’s testimony was the tipping point that made it clear he is not enforcing the law and is openly defying the president, and he should resign immediately.”
Barron was referring to Bloch’s answer to a question posed to him by Michigan Democratic Sen. Carl Levin, in which the OSC director said he could not protect federal employees who were discriminated against simply because they were gay.
Bloch was called before the subcommittee for actions he took soon after Pres. George W. Bush appointed him head of the OSC in 2004. Just a few months into his tenure, Bloch removed the category of sexual orientation from the OSC’s list of groups afforded protection in the federal workforce. Bloch explained that he could only guarantee a gay employee’s right to non-discrimination protections if that bias resulted from actions the employee took while away from work or that had no bearing on the employee’s job performance. He gave the example of a gay federal worker losing their job because they attended a gay pride event.
Bloch specifically said discrimination against a federal employee based on their identity as a gay man or lesbian is not an action he could discipline.
Even though Bloch later backed off this assertion, he refused to reinstate the sexual orientation category at the OSC. Subsequent statements to individual lawmakers also made it appear as though he is holding to his original argument.
But, as Bloch finally made clear in his Senate appearance, an employee fired for simply stating that he or she is gay or lesbian has no recourse under his directorship.
Bloch maintains this position despite a public rebuke from the White House. In response to Congressional pressure over Bloch’s actions, the White House issued the following statement in April 2004: “Long-standing federal policy prohibits discrimination against federal employees based on sexual orientation. Pres. Bush expects federal agencies to enforce this policy and to ensure that all federal employees are protected from unfair discrimination at work.”
This unwavering stance has convinced the Log Cabin Republicans that Bloch must be fired.
“He is unwilling to enforce longstanding federal protections and is openly defying the President,” Barron said.
Bloch told the Senate that his lack of authority stemmed from the fact that no federal civil rights law or court case defined sexual orientation as a protected class, specifically citing Morales v. Department of Justice, which rejected sexual orientation as a protected class.
“That is a complete red herring,” said Elaine Kaplan, former OSC director appointed by President Clinton, and Bloch’s predecessor.
“Morales ruled on whether sexual orientation was protected under Title VII of the Civil Rights Act of 1964,” Kaplan said. “But this has never been used as the basis for OSC’s investigation of sexual orientation complaints.”
Kaplan said sexual orientation discrimination is illegal in the federal workforce based on the Civil Service Act of 1978, which bans discrimination based on off-duty conduct that does not affect job performance. Kaplan said this statute has always been interpreted to prohibit sexual orientation discrimination.
“As a practical matter discriminating against an employee because he or she is gay is discrimination based on conduct, either actual or assumed,” Kaplan said. “When you hear someone is gay, you make immediate assumptions about what they do after work, where they go, the friends they have.”
That is a nuance Bloch seems unwilling to entertain. He told the subcommittee that unless an employee could prove a behavior they undertook resulted in discrimination, there was nothing he or the employee could do to rectify the situation.
Bloch’s Senate testimony has also led the Human Rights Campaign (HRC) and FedGLOBE, an association of gay and lesbian federal workers, to press Bush to fire Scott Bloch.
“The recourse for gay employees is based on a statute interpreted to include sexual orientation since the 1970s under Democrat and Republican presidents,” said Christopher Labonte, HRC’s legislative director. “He should and must enforce those laws.”
Labonte said the White House’s executive order—coupled with current law—empowers the OSC to investigate and take action against managers who have discriminated against gay employees.
“He persists in confusing civil rights law and the concept of ‘protected classes’ with the civil service law,” said Len Hirsch, president of FedGLOBE, in a written statement.
“We no longer believe that gay federal employees can trust Mr. Bloch to fairly and impartially enforce the long-standing interpretation of personnel law that would protect against discriminatory actions based on sexual orientation,” Hirsch said.
However, even though Bloch has stated the OSC’s policy, which now contradicts federal guidelines going back to Jimmy Carter, and codified under Ronald Reagan’s assistant attorney general, Ted Olson, there is little that can be done to force the agency back into alignment.
OSC directors are appointed for five years. To ensure their independence, they cannot be removed except in cases of illegal misconduct. Bloch’s term ends in 2009.
Sen. Daniel Akaka, a Hawaii Democrat, at whose urging the subcommittee hearing was held, had this to say when asked if he thought Scott Bloch should remain at the OSC: “I plan to carefully review his responses to my questions which will influence my opinion as to whether he should or should not remain in office. My goal is to ensure the OSC is able to execute its mission of protecting all federal employees.”
A spokesperson for Senator Susan Collins, a Maine Republican, did not return calls seeking comment regarding Bloch. Collins chairs the Governmental Affairs committee that oversees the subcommittee that heard Bloch’s testimony.
The only Republican present at the hearing, George Voinovich from Ohio, said through a spokesperson that he was satisfied with Bloch’s answers.
Neither the OSC nor the White House could be reached for comment.