[House Report 109-313]
[From the U.S. Government Publishing Office]



                                                                       
109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-313

======================================================================



 
          CLARIFICATION OF FEDERAL EMPLOYMENT PROTECTIONS ACT

                                _______
                                

 November 18, 2005.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Tom Davis of Virginia, from the Committee on Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3128]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Government Reform, to whom was referred the 
bill (H.R. 3128) to affirm that Federal employees are protected 
from discrimination on the basis of sexual orientation and to 
repudiate any assertion to the contrary, having considered the 
same, report favorably thereon without amendment and recommend 
that the bill do pass.

                                CONTENTS

                                                                   Page
Contents.........................................................     1
Committee Statement and Views....................................     2
Section-by-Section...............................................     2
Explanation of Amendments........................................     2
Committee Consideration..........................................     2
Rollcall Votes...................................................     2
Application of Law to the Legislative Branch.....................     3
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     3
Statement of General Performance Goals and Objectives............     3
Constitutional Authority Statement...............................     3
Federal Advisory Committee Act...................................     3
Unfunded Mandate Statement.......................................     3
Committee Estimate...............................................     3
Budget Authority and Congressional Budget Office Cost Estimate...     3
Changes In Existing Law Made by the Bill as Reported.............     4
Minority Views...................................................     5

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 3128 clarifies Congressional intent with regard to 
statutory protections available to Federal employees facing 
discrimination on the basis of sexual orientation. The 
legislation states that Congressional intent as well as current 
policy and practice prohibit Federal employment discrimination 
on the basis of sexual orientation. The legislation amends 
current law to specifically prohibit discrimination based on 
sexual orientation.

                          LEGISLATIVE HISTORY

    On June 6, 2005, Rep. Henry Waxman (D-CA) introduced H.R. 
3128, the ``Clarification of Federal Employment Protection 
Act.'' On September 15, 2005, the committee approved H.R. 3128 
by voice vote and ordered it reported favorably to the full 
House of Representatives for consideration.

                           Section-by-Section


Section 1

    Names this legislation the ``Clarification of Federal 
Employment Protections Act.''

Section 2

    This section states that, in order to dispel any public 
confusion, Congress hereby repudiates any assertion that 
Federal employees are not protected from discrimination on the 
basis of sexual orientation. This section also states that 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. Finally, this section would amend 
section 2302(b)(1) of title 5, United States Code, by adding at 
the end the following: ``(F) on the basis of sexual 
orientation.''

                       Explanation of Amendments

    There were no amendments offered.

                        Committee Consideration

    On September 15, 2005, the Committee met in open session 
and ordered favorably reported the bill, H.R. 3128, by voice 
vote.

                             Rollcall Votes

    No rollcall votes were held.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 3128. Article I, Section 8, Clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement whether 
the provisions of the reported include unfunded mandates. In 
compliance with this requirement the Committee has received a 
letter from the Congressional Budget Office included herein.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 3128. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
billprepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 3128 from the Director of 
Congressional Budget Office:

H.R. 3128--Clarification of Federal Employment Protections Act

    CBO estimates that enacting H.R. 3128 would have no 
significant impact on the federal budget. Enacting the bill 
would not affect direct spending or revenues. H.R. 3128 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and would not 
affect the budgets of State, local, or tribal governments.
    H.R. 3128 would amend federal law to codify that 
discrimination against Federal employees based on sexual 
orientation is a prohibited personnel practice. Because the 
legislation would put into statute current policy and practice, 
CBO estimates that implementing H.R. 3128 would have no 
significant impact on the budget.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

              SECTION 2302 OF TITLE 5, UNITED STATES CODE

Sec. 2302. Prohibited personnel practices

  (a) * * *
  (b) Any employee who has authority to take, direct others to 
take, recommend, or approve any personnel action, shall not, 
with respect to such authority--
          (1) discriminate for or against any employee or 
        applicant for employment--
                  (A) * * *

           *       *       *       *       *       *       *

                  (D) on the basis of handicapping condition, 
                as prohibited under section 501 of the 
                Rehabilitation Act of 1973 (29 U.S.C. 791); 
                [or]
                  (E) on the basis of marital status or 
                political affiliation, as prohibited under any 
                law, rule, or regulation; or
                  (F) on the basis of sexual orientation.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    I introduced H.R. 3128, the ``Clarification of Federal 
Employment Protection Act,'' to reaffirm that Federal employees 
are protected from discrimination on the basis of sexual 
orientation and to repudiate any assertion to the contrary. At 
a time when our federal employees are working tirelessly on 
behalf of the Nation, we should be doing our utmost to ensure 
that all are protected against all forms of discrimination. 
Unfortunately, some in the Bush Administration appear to have 
abandoned a long-standing, bipartisan interpretation of the law 
that protects Federal employees from discrimination based on 
sexual orientation.
    Until recently, the Bush Administration followed a long-
standing policy prohibiting job discrimination against gay 
Federal employees. However, Special Counsel Scott Bloch, head 
of the Office of Special Counsel (OSC), which is responsible 
for investigating and prosecuting retaliation claims in the 
Federal workplace, including retaliation resulting from 
discrimination, has deviated from this long-held policy.
    The statutory provision at issue is 5 U.S.C. 2302(b)(10), 
which makes it unlawful to ``discriminate for or against any 
[Federal] employee or applicant for employment on the basis of 
conduct which does not adversely affect the performance of the 
employee or applicant or the performance of others.'' Enacted 
as part of the Civil Service Reform Act of 1978, this provision 
has been interpreted by both Republican and Democratic 
administrations to prohibit discrimination against Federal 
workers on the basis of their sexual orientation, including 
both discrimination based solely on ``orientation'' or 
``status'' and sexual conduct.
    In 1980, the Director of the Office of Personnel Management 
(OPM) advised Federal agencies that under 5 U.S.C. 
Sec. 2302(b)(10) ``applicants and employees are to be protected 
against inquiries into, or actions based upon, non job-related 
conduct, such as religious, community, or social affiliations, 
or sexual orientation.'' \1\ This position has been repeatedly 
reaffirmed by OPM. In fact, OPM guidance issued in a 1999 
publication that remains available today states that OPM ``has 
interpreted this statute [10 U.S.C. Sec. 2302(b)(10)] to 
prohibit discrimination based on sexual orientation.'' \2\ The 
Justice Department has issued similar guidance. An opinion 
written more than 20 years ago by Theodore Olson, then 
Assistant Attorney General heading the Office of Legal Counsel, 
states that ``it is improper to deny employment or to terminate 
anyone on the basis either of sexual preference or of conduct 
that does not adversely affect job performance.'' \3\ Prior to 
the current Special Counsel's tenure, OSC also interpreted this 
provision to prohibit discrimination based on sexual 
orientation.
---------------------------------------------------------------------------
    \1\ OPM, Memorandum on ``Policy Statement On Discrimination On The 
Basis of Conduct Which Does Not Adversely Affect The Performance Of 
Employees Or Applicants For Employment'' (May 12, 1980).
    \2\ OPM, Addressing Sexual Orientation Discrimination in Federal 
Civilian Employment: A Guide to Employee's Rights http://www.opm.gov/
er/address2/Guide04.asp
    \3\ OLC, Termination of an assistant United States Attorney on 
Grounds Related to his Acknowledged Homosexuality, 3 (Mar. 11, 1983) (7 
op. OLC 46).
---------------------------------------------------------------------------
    Unfortunately, the current Special Counsel continues to 
refuse to investigate certain claims of sexual orientation 
discrimination. Within weeks of taking office in January 2004, 
and apparently without consulting OPM, he ordered the removal 
of all references to OSC's jurisdiction to enforce sexual 
orientation discrimination protections from OSC's website.
    Mr. Bloch explained his reasoning in testimony on May 24, 
2005, before the Senate Committee on Homeland Security and 
Governmental Affairs. He contends that 5 U.S.C. 
Sec. 2302(b)(10) prohibits discrimination based on ``conduct'' 
and does not mention discrimination based on ``orientation'' or 
status. He apparently concludes that OSC would exceed its 
jurisdiction if it were to investigate and prosecute cases 
alleging discrimination based solely on sexual orientation 
where no conduct is in question.
    The distinction the Special Counsel seems to be making 
between discrimination based on sexual ``conduct'' and sexual 
``orientation'' is incomprehensible. His suggestion that such a 
distinction exists is the reason for this clarifying 
legislation. When a Federal agency discriminates against an 
employee or applicant because he or she is gay, the 
discrimination is rooted in disapproval of their sexual conduct 
or other manifestation of the employee's ``lifestyle,'' not 
some abstract disapproval of the person's ``orientation.'' 
There is no meaningful, real-world distinction between 
discrimination based on ``conduct'' and discrimination based on 
``orientation'' because conduct and orientation are 
inextricably intertwined in this context.
    H.R. 3128 would make clear the protection afforded by the 
Civil Service Reform Act of 1978 by explicitly making 
discrimination on the basis of sexual orientation a prohibited 
personnel practice under the act.
    I commend my colleagues--Representatives Shays, Danny 
Davis, Foley, Frank, Kolbe, Hoyer, Engel, Baldwin, Van Hollen, 
and Norton--for their leadership on this issue and look forward 
to working with them to obtain rapid approval of this bill in 
the House.

                                   Henry A. Waxman.
                                   Eleanor Holmes Norton.

                                  
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