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U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
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LEGAL INTERPRETATION OF DISCRIMINATION STATUTE
FOR IMMEDIATE RELEASE - 2/27/04
CONTACT: MARY K. MONAHAN
(202) 254-3600
WASHINGTON - Scott J. Bloch, Special Counsel of the U.S.
Office of Special Counsel (OSC) today announced he is conducting a review of
many aspects of the agency, including personnel, structure of the agency,
the backlog of prohibited personnel practice cases and disclosure cases, as
well as OSC policies. “We are in the process of evaluating,” said Mr. Bloch,
“the backlog of prohibited personnel practices, whistleblower disclosures,
and Hatch Act cases, to determine how best to utilize the resources we have
to improve the efficiency of our office and better serve the federal merit
protection system. I have challenged our excellent team to eliminate these
backlogs by the end of the year.
“In addition, we are reviewing all policies of the office to
determine the legal basis and prudence of each. In the course of this
review, we have removed materials from the agency website in several policy
areas and are conducting a legal analysis of the basis on which this office
has previously reviewed claims of ‘sexual orientation’ discrimination,
particularly the significance of the specific language under 5 U.S.C. ยง
2302(b)(10). I am dedicated to the principles of fairness and
nondiscrimination in federal employment for which this Office is known. The
Office, and I personally, remain committed to enforcing all prohibited
personnel practices, including discrimination, as the statute says, ‘on the
basis of conduct which does not adversely affect the job performance of the
employee or applicant or the performance of others[,]’ regardless of an
individual’s orientation.
"It appears that, beginning five years ago, this Office based
jurisdiction in this area on the amendment to Executive Order 11487 made by
Executive Order 13087. But Executive Order 11487, as further amended by
Executive Order 13152, expressly states that it 'does not confer any right
or benefit enforceable in law or equity against the United States or its
representatives.' Further, Executive Order 11487, as amended, expressly
places responsibility for its enforcement and implementation in the EEOC,
not in OSC. This raises questions as to my power to enforce this Executive
Order and reinforces my decision to conduct a full legal review of this
policy. Therefore, OSC has removed these materials until a thorough legal
analysis can be completed to clarify this area of the law.”
“Under the oath of office I took, it is my obligation to uphold the
law,” Mr. Bloch continued. “First, we must determine what the law is when,
as here, our enforcement power is not based on the plain words of the
statute enacted by Congress and interpreted by the courts. We intend to
continue enforcement for all manner of personal conduct that falls within
the meaning of the statute, and to consult with professionals in my office,
as well as outside my office, to ensure that a thorough and fair legal
review occurs so that OSC gives the full measure of justice to all federal
employees.”
OSC is an independent investigative and prosecutorial
agency. Its primary mission is to safeguard the merit system in federal
employment by protecting federal employees and applicants from prohibited
personnel practices, especially retaliation for whistleblowing. OSC also has
jurisdiction over the Hatch Act and the Uniformed Services Employment and
Reemployment Rights Act.
For more information about OSC, please visit our website at www.osc.gov.
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