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Washington, D.C.—The federal office with responsibility for protecting government workers from discrimination and retaliation appears to be backing away from its duty to enforce complaints of sexual orientation discrimination, and the leader of the nation’s largest independent union of federal workers wants to know why.

In a letter to Scott Bloch, Special Counsel of the U.S. Office of Special Counsel, National Treasury Employees Union (NTEU) President Colleen M. Kelley demanded to know if OSC is abdicating its statutory obligation to enforce the law and inform federal workers of their rights.

Her concerns arose, President Kelley said, because it appears that Bloch no longer intends to make federal employees and federal job applicants aware that discrimination based on sexual orientation is prohibited in the federal government.

“Indeed,” Kelley wrote, “in recent days, all references on OSC’s web site to its jurisdiction to accept complaints of discrimination based on sexual orientation appear to have been removed,” including previous references to it in OSC’s basic brochure, its complaint form, a two-page flier entitled “Your Rights As A Federal Employee” and a set of applicable training slides.

“Of particular concern,” the NTEU leader said, is the removal from the index of press releases issued in 2003 of any reference to a June 2003 OSC press release announcing settlement of an important case involving sexual orientation discrimination against an applicant for work at the Internal Revenue Service. NTEU represents some 98,000 IRS employees.

“Removal of this press release, in particular, seems to signal a deliberate decision to obscure the history of OSC’s enforcement actions,” Kelley said.

She described OSC’s recent actions as appearing to be “in direct contradiction” to decades of established interpretation of the law, as well as to previous OSC policy and procedure—and she demanded that Bloch, in the event that OSC no longer will be enforcing basic discrimination protections, provide “a statement of your legal basis for taking this position.”

Among OSC’s duties are enforcement of the Hatch Act, which governs political activity by federal workers, and protection of federal whistleblowers.

As the largest independent union of federal employees, NTEU represents some 150,000 workers in 29 agencies and departments.

Kelley Letter to Bloch Attached:

February 11, 2004

VIA TELECOPIER

Hon. Scott Bloch

Special Counsel

U.S. Office of Special Counsel

1730 M Street, N.W.

Suite 300

Washington, D.C. 20036

Re: OSC’s Enforcement of Complaints of Sexual Orientation Discrimination

Dear Mr. Bloch:

I am writing to seek clarification regarding your intentions in enforcing discrimination protections for federal employees. Specifically, I--as the representative of over 150,000 federal employees--would like to know whether the U.S. Office of Special Counsel, intends to retreat from its long-established policy of investigating and taking action in matters involving allegations of sexual orientation discrimination against federal workers.

My concern arises because I understand that you have recently directed that OSC no longer publicize its enforcement of prohibited personnel practice complaints that involve allegations of sexual orientation discrimination against federal workers. Indeed, in recent days, all references on OSC’s web-site to its jurisdiction to accept complaints of discrimination based on sexual orientation appear to have been removed.

Thus, I see that previous references to sexual orientation discrimination have been purged from OSC’s basic brochure, its complaint form (OSC-11), the “prohibited personnel practice” section of the web-site, the 2-page flyer entitled “Your Rights as a Federal Employee,” and the set of training slides for 2302(c) programs, among others. Of particular concern is the removal from the index of press releases issued in 2003 any reference to a press release issued by OSC in June 2003 announcing the settlement of a significant case involving sexual orientation discrimination against an applicant to the Internal Revenue Service, and the imposition of disciplinary action against an IRS supervisor. (IRS employees are exclusively represented by the National Treasury Employees Union). Removal of this press release, in particular, seems to signal a deliberate decision to obscure the history of OSC’s enforcement actions, and an abdication of OSC’s statutory obligation to enforce the law and to inform federal workers of their rights.

If this revision of OSC material indicates a determination not to enforce the protections against discrimination based on sexual orientation, OSC would be acting contrary to long-established interpretations of its statutory authority. It has long been settled that 5 U.S.C. § 2302(b)(10) covers discrimination based on solely on an employee’s status as a homosexual. Former Associate Attorney General (now U.S. Solicitor General) Theodore B. Olson so concluded more then 20 years ago in an Opinion of the Office of Legal Counsel of the U.S. Department of Justice. See 7 Op. O.L.C. 58 (March 11, 1983). In that opinion, Mr. Olson reviewed the extensive D.C. Circuit case law that led the former U.S. Civil Service Commission (now the U.S. Office of Personnel Management) to provide by regulation that a person may not be found “unsuitable for Federal employment merely because that person is a homosexual or has engaged in homosexual acts . . . .” Id. at p. 7. Mr. Olson concluded that under 5 U.S.C. § 2302(b)(10) and then-current OPM regulation, “it is improper to deny employment to or to terminate anyone on the basis either of sexual preference or of conduct that does not adversely affect job performance.” Id. at p. 8.

More recently, as a result of Executive Order 13087 (May 28, 1998), OPM issued government-wide guidance in 1999 that reaffirmed its interpretation that 5 U.S.C. § 2302(b)(10) covers allegations of sexual orientation discrimination. In a publication that remains available today on OPM’s web-site, “Addressing Sexual Orientation Discrimination in Federal Civilian Employment: A Guide to Employee’s Rights,” OPM stated that it “has interpreted this statute [2302(b)(10)] to prohibit discrimination based on sexual orientation. Sexual orientation means homosexuality, bisexuality or heterosexuality.”

See http://www.opm.gov/er/address2/Guide04.asp.

Moreover, that guide, which I understand was issued with significant consultation with OSC, specifically states that “the Office of Special Counsel is an independent investigative and prosecutorial agency within the Executive Branch that receives and investigates complaints alleging prohibited personnel practices, including those involving discrimination based upon sexual orientation.”

See http://www.opm.gov/er/address2/Guide05.asp.

OSC’s recent actions appear to be in direct contradiction to this established interpretation of the law, as well as to previous OSC policy and procedure. Please respond to this letter by clarifying current OSC policy. If the recent deletions to the OSC web-site indicate that OSC will no longer enforce these basic discrimination protections, I would appreciate a statement of your legal basis for taking that position.

Sincerely,

Colleen M. Kelley

National President