OSC QUESTIONS S.O. DISCRIMINATION STATUTE – FEDERAL GLOBE URGES HEARING ON BLOCH ACTIONS

WASHINGTON, D.C.- Special Counsel Scott Bloch announced February 27 that his office is conducting a legal analysis of the basis on which the Office of Special Counsel (OSC) has previously reviewed claims of “sexual orientation” discrimination, in particular the statutory underpinning of such claims – 5 USC 2302(b)(10).

Mr. Bloch alleges that 5 years ago, the OSC began basing its jurisdiction on the 1998 Clinton administration Executive Order (E.O.) 13087. That E.O., as then President Clinton noted, “will ensure that there is a uniform policy throughout the Federal Government by adding sexual orientation to the list of categories for which discrimination is prohibited in Executive Order 11478 (i.e. race, color, religion, sex, national origin, handicap, or age). E.O. 13087 states Administration policy but does not and cannot create any new enforcement rights (such as the ability to proceed before the Equal Employment Opportunity Commission).” In spite of this statement, Mr. Bloch claims “Executive Order 11487, as amended, expressly places responsibility for its enforcement and implementation in the EEOC, not in OSC,” and raises questions in his mind as to OSC’s power to enforce the E.O.

This is just a wrong interpretation on Mr. Bloch’s part. OSC’s authority and legal basis for handling claims of sexual orientation discrimination in personnel practices has always been firmly grounded in the statute – 5 USC 2302(b)(10) – and not the E.O. This was the case prior to the issuance of the Clinton E.O. Indeed, the OPM guidance on sexual orientation discrimination, issued after the Clinton E.O., clearly acknowledged that the E.O. did not create any new enforceable rights, but explained that federal employees already had pre-existing statutory rights to be free of discrimination based on sexual orientation.

Mr. Bloch’s statement conflates these bases and confuses the issues. At the same time he has conveniently removed the documents from OSC’s website that would clearly explain these issues and resolve the matter. Mr. Bloch's actions are contrary to promises he made during his confirmation hearing. Consequently, the Senate should hold a hearing and force Mr. Bloch to explain these actions.

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