- The Washington Times - Sunday, March 21, 2004

The Office of Special Counsel, which protects government employees from workplace discrimination, has suspended enforcement of harassment claims based on sexual orientation, pending an analysis of whether federal law covers homosexuals.

A Clinton-era interpretation of the law had allowed such cases to be pursued.

Special Counsel Scott J. Bloch, named last year by President Bush to head the office, said the review is expected to take several weeks, noting that sexual orientation is not mentioned as a basis for discrimination in existing civil rights laws or in the statute under which the OSC operates.

In the meantime, Mr. Bloch has ordered references to workplace discrimination based on sexual orientation removed from the agency’s Web site and from federal training manuals.

“It is critical that this agency be especially careful not to engage in the kind of extra-legal enforcement actions that we prosecute on a daily basis,” he said. “That is why we must be especially precise in reviewing the proper limitations of this agency’s enforcement powers.”

At issue is whether the OSC has the authority to create a “protected class” of employees based on sexual orientation, which is not included in existing federal law and for which no precedent has been set at the federal court level.

Five years ago, former Special Counsel Elaine Kaplan, a Clinton appointee who preceded Mr. Bloch, interpreted existing law to include victims of sexual-orientation discrimination as members of a protected class, and proponents cite a 1999 executive order by Mr. Clinton as grounds for enforcement.

But the Clinton order does not “confer any right or benefit enforceable in law or equity against the United States or its representatives” and places responsibility for enforcement and implementation solely at the Equal Employment Opportunity Commission, not the OSC.

Mr. Bloch’s decision to remove references to sexual orientation from the OSC Web site and training manuals brought angry criticism from Capitol Hill and homosexual rights groups.

Four senators said in a letter that Mr. Bloch violated assurances he made during his confirmation hearing that he was committed to protecting all federal employees against discrimination. Democratic Sens. Carl Levin of Michigan, Daniel K. Akaka of Hawaii and Joe Lieberman of Connecticut, along with Republican Sen. Susan Collins of Maine, demanded that he “reaffirm your previously stated commitment.”

A similar letter signed by 70 House Democrats asked Mr. Bloch to “publicly acknowledge that discrimination based on sexual orientation is and will remain a prohibited practice.”

They said both the Office of Personnel Management (OPM) and the Justice Department’s Office of Legal Counsel have interpreted the law to prohibit discrimination based on sexual orientation.

Records show, however, that neither a 1980 OPM memorandum nor a 1983 opinion letter by the Office of Legal Counsel purport to create or even reference whether a protected class based on sexual orientation existed under the law.

On Friday, the Log Cabin Republicans also called on the Bush administration to “follow 30 years of clear precedent and continue protecting federal employees from discrimination” based on sexual orientation. In a letter, the homosexual rights organization said the rollback threatened “basic protections.”

Log Cabin Executive Director Patrick Guerriero said although it contained no specific reference to sexual orientation, federal law has been “uniformly interpreted” to prohibit such discrimination. He asked Mr. Bloch to “immediately restore protections for gay and lesbian federal employees.”

Mr. Bloch said the ongoing analysis will focus “on the legal basis” for Mrs. Kaplan’s decision in 1999 to change enforcement policy to include sexual orientation as a protected class. He said it was “only a review,” and no final decision had been made.

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