[Congressional Record Volume 153, Number 76 (Wednesday, May 9, 2007)]
[Senate]
[Pages S5871-S5873]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. AKAKA (for himself, Mr. Lieberman, Ms. Collins, Mr. Levin,
Mr. Leahy, Mr. Feingold, and Mrs. Clinton):
S. 1345. A bill to affirm that Federal employees are protected from
discrimination on the basis of sexual orientation and to repudiate any
assertion to the contrary; to the Committee on Homeland Security and
Governmental Affairs.
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
[[Page S5873]]
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 U.S.C. 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 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 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 ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1345
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Clarification of Federal
Employment Protections Act''.
SEC. 2. DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
PROHIBITED.
(a) Repudiation.--In order to dispel any public confusion,
Congress repudiates any assertion that Federal employees are
not protected from discrimination on the basis of sexual
orientation.
(b) Affirmation.--It is the sense of Congress that, in the
absence of the amendment made by subsection (c),
discrimination against Federal employees and applicants for
Federal employment on the basis of sexual orientation is
prohibited by section 2302(b)(10) of title 5, United States
Code.
(c) Amendment.--Section 2302(b)(1) of title 5, United
States Code, is amended--
(1) by striking ``or'' at the end of subparagraph (D);
(2) by inserting ``or'' at the end of subparagraph (E); and
(3) by adding at the end the following:
``(F) on the basis of sexual orientation.''.
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