The U.S. Office of Special Counsel (OSC) is charged with investigating allegations of discrimination by federal employees.

The 1978 Civil Service Reform Act (CSRA) created the Office of Personnel Management (OPM) and defined systems for managing the federal workforce. Its provisions included 5 U.S.C. Section 2302(b)(10), which prohibits discrimination on the basis of conduct which does not adversely affect job performance.

According to an article published yesterday by the Federal Times:

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.

The OSC, which had been led by Clinton appointee Elaine Kaplan until the end of 2003, is now run by Scott Bloch. Bloch has aroused concerns of senators. He testified during his Senate confirmation process:

[F]iring someone solely because the person is seen at an event such as the one you cited [Gay Pride Day] would fall within the prohibitions of 5 U.S.C. § 2302(b)(10). Furthermore, conduct such as being at a Gay Pride Day event, by itself, would not, in my view, affect job performance, and employers would not be able to say that being at such an event will discredit the agency or establish a basis to discriminate because it makes other people uncomfortable. The federal workforce is not a place for selective discrimination.

A February 27 press release by Bloch’s office offers a different timeline from the Federal Times, suggesting that no OSC jurisdiction over sexual orientation discrimination existed before President Clinton’s 1998 executive order prohibiting discrimination against gays.

Yesterday, 365gay summed up the situation.

Some antigay activists claim that it’s behavior, not attraction, that is sinful and worthy of civil and criminal punishment.

But now a high-ranking official in the Bush Administration is saying people who are fired simply because they identify as gay (or ex-gay, for that matter) have no legal recourse. In his press release, Bloch stated (emphasis mine):

“I personally remain committed to enforcing all prohibited personnel practices, including discrimination […] regardless of an individual’s orientation.”

But his narrow interpretation of the CSRA, and the role of his office, precludes him from responding to discrimination based specifically on sexual orientation.

It’s good to hear that Bloch isn’t proposing orientation-based discrimination. As the commissioners of Rhea County, Tennessee demonstrate, though, not all public servants will interpret his actions so nobly.

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