STATEMENT OF SENATOR DANIEL K. AKAKA
INTRODUCTION OF CLARIFICATION OF FEDERAL EMPLOYMENT PROTECTION ACT
Mr. AKAKA.
Mr. President, as we celebrate Public Service Recognition Week and the dedication and professionalism of federal employees, I rise today to introduce legislation to reassert protections for federal employees and applicants for federal employment against discrimination based on one's sexual orientation. The Clarification of Federal Employment Protection Act will spell out the protections that federal employees currently have but have been denied by the Office of Special Counsel (OSC). I am pleased that Senators Lieberman, Collins, Levin, Leahy, Feingold, and Clinton are cosponsoring this important legislation and that Representative Henry Waxman, Chairman of the House Oversight and Government Reform Committee, is introducing a companion bill in the House.
When Congress passed the Civil Service Reform Act of 1978, it established a list of prohibited personnel practices - personnel actions that were clearly not in line with the Merit System Principles and were subject to prosecution by OSC. Examples include personnel actions - such as hiring, firing, and changes in pay - against employees based on a whistleblower disclosure, nepotism, or off-duty conduct.
The prohibition on personnel action based on off-duty conduct, found in section 2302(b)(10) of title 5, United States Code, has been interpreted for years to prohibit the taking of personnel actions against employees and applicants for employment based on their sexual orientation. In 1980, Mr. Alan Campbell, Director of the Office of Personnel Management (OPM) at the time, wrote a memorandum to the heads of all executive branch agencies advising that, under 5 USC 2302(b)(10), employees and applicants were to be protected against inquiries into or actions based upon non job-related conduct, including religious or community affiliations, or sexual orientation. The position by OPM has been reaffirmed time and again, most recently by the current OPM Director, Linda Springer, in her responses to questions posed by the Homeland Security and Governmental Affairs Committee in relation to her nomination for the position. In fact, to this day, OPM's website contains a guide to federal employee rights which states that section 2302(b)(10) has been interpreted by OPM to prohibit discrimination based upon sexual orientation.
OPM is not alone in this interpretation. The previous Special Counsel also interpreted 2302(b)(10) to protect against discrimination based on an individual's sexual orientation. For example, in 2003, OSC secured corrective and disciplinary action against a federal supervisor who discriminated against a federal job applicant because he was gay in violation of section 2302(b)(10). In 2004, following the debate spurred by OSC over the interpretation of this provision, White House spokesman Trent Duffy said the president "believes that no federal employee should be subject to unlawful discrimination, and federal agencies will fully enforce the law against discrimination, including discrimination based on sexual orientation."
Upon the nomination of Scott Bloch to be the new Special Counsel, I asked the nominee about his interpretation of the laws protecting federal employees and applicants against sexual orientation discrimination. When asked if he would support the interpretation of 2302(b)(10) by OPM and OSC, he said that he would not fail to enforce a claim of sexual orientation discrimination before OSC that shows through the evidence that the statute has been violated.
Nonetheless, after being in office for only a few months, Special Counsel Bloch conducted a review of the discrimination statute and claimed that section 2302(b)(10) only provides protection against discrimination based on conduct, including sexual conduct, but not one's sexual orientation. Instead, Mr. Bloch claims that for discrimination based on status, referring to sexual orientation, it would have to be listed under section 2302(b)(1), which protects employees from discrimination based on race, gender, religion, or marital status. This departure from the long-standing interpretation of (b)(10) by OSC and OPM is illogical. When a supervisor who dislikes gays or lesbians refuses to hire an applicant who the supervisor believes is gay or lesbian, it follows that the supervisor is basing the personnel action on disapproval of the applicant's presumed sexual conduct. In other words, in the context of sexual orientation discrimination, status implies conduct.
I believe that Congress must act to guarantee the protections it has provided to federal employees and applicants for federal employment. We cannot allow one Administration official's opinion to undermine the merit system or the rights and protections of federal workers. The legislation I am introducing today would affirm that sexual orientation is protected by section 2302(b)(10) but also make it a clear protected status under section (b)(1). I urge my colleagues to support this legislation and ask unanimous consent that the text of the bill be printed in the Record following my remarks.
