[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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