May 25, 2005
Guess I won't go for a government job.
by Jeff Langstraat
I can be fired for being gay, at least that's what Scott Bloch continues to say:
Special counsel Scott J. Bloch told a Senate panel yesterday that he lacks the legal authority to enforce the Bush administration's ban on discrimination against federal employees based on sexual orientation.
Now, it could be argued that Bloch is going against the spirit of a Bush administration statement that it would honor President Clinton's 1998 executive order (13087 (pdf)) banning sexual orientation-based discrimination in Federal employment. More on that below. First, I want to place this in historic context by taking a look at the history of queer employment by the Federal Government. We all know that the military is still off limits to gay folks (don't feed me the, "they can serve if they keep it quiet" line...DADT is a de facto ban (pdf)).
In 1953, President Eisenhower signed Executive Order 10450. John D'Emilio writes:
One section explicitly listed "sexual perversion" as sufficient and necessary grounds for disbarment from federal jobs, thus narrowing the wide discretionary authority over firing that personnel officers had previously enjoyed. In its first sixteen months of operation, the Eisenhower program removed homosexuals from government at a rate of forty per month. By all accounts, however, these figures understate the number of gay men and women penalized for their sexuality. At the very least, they exclude employees still allowed to resign quietly through the compassion of a friendly supervisor. Many more individuals never made it on to the federal payroll, since all applicants for government employment faced security investigations. From 1947 through mid-1950, 1,700 job seekers were denied employment because of homosexuality. After that period, the government expanded its screening criteria. (1983 edition, p. 44)
Such a policy was widely accepted. Even the ACLU could not be convinced it was a troubling stance until the 1960s. In 1964 the ACLU protested the blanket exclusion of homosexuals, after strenuous urging to take on the issue by Franklin Kameny, a astronomer who had been purged from the US Map Service. Kameny was one of the very few people who tried to take on the Federal Government's ill-treatment of gay people. The ban, however, stood until 1975. Homosexual status was enough to receive a dishonorable discharge from the military until 1981, with the release of DoD Directive1332.14 (pdf).
Lesbian, gay and bisexual employees had no protections until 1998, when President Clinton signed Executive Order13087 (pdf). In 1995, President Clinton ended the use of sexual orientation as a factor in granting security clearance (EO 12,968).
This almost brings us to yesterday's testimony by Bloch. At this point, I'm going to turn to the Boston Phoenix (read the full article...it's well worth it):
During Bloch's confirmation process in the fall of 2003, senators suspicious of his beliefs asked him directly about his interpretation. Bloch's answers were vague. Senator Daniel Akaka submitted a series of written follow-up questions to get Bloch to clarify. His four-page response to Akaka talked around the question. For instance, asked directly whether he agrees that the statute covers sexual orientation, Bloch wrote: "I will not fail to enforce if a claim of sexual orientation discrimination comes to my office that shows through the evidence that the statute has been violated." Faced with this mumbo-jumbo, Senator Carl Levin submitted yet another follow-up, which Bloch again managed to answer without answering.Bloch was playing possum to get confirmed. In February 2004, a month after taking office, he began a "legal review" to determine whether the statute covers sexual-orientation discrimination. At the same time, Bloch ordered all references to sexual-orientation discrimination scrubbed from the OSC Web site, including materials designed to educate employers and employees about the law.
His actions got leaked, embarrassing the White House, which announced in March that the Bush administration believes that the OSC covers sexual orientation. The day after that declaration, Bloch announced via press release that his legal-review project was complete, and that sexual-orientation discrimination cases would be pursued.
(Lest anyone think that scrubbing references to sexual orientation is limited to Bloch's office, check on John Aravosis's reporting on events at NCFR.)
The results of his "review" were interesting, to say the least. Sexual orientation was not covered, but sexual orientation related behavior was. So, one could be fired for being gay, but not for attending a Gay Pride parade (sort of the opposite of DADT). That rather silly interpretation caused the administration to take some heat, and in April, 2004 the White House said they would abide by Clinton's EO protecting workers against sexual orientation-based discrimination.
Well, good ol' trustworthy Scotty found a way to get Bush off the hook. From the Post's story:
"We are limited by our enforcement statutes as Congress gives them," Bloch said, responding to a question from Sen. Carl M. Levin (D-Mich.). "The courts have specifically rejected sexual orientation as a class protection."[snip]
The controversies -- especially last year's flap over sexual orientation discrimination -- have brought unflattering attention to an agency that typically has worked outside the limelight. In April 2004, the White House took the unusual step of clarifying its position on protections for gay men and lesbians in government workplaces, protections observed for three decades.
"Longstanding federal policy prohibits discrimination against federal employees based on sexual orientation," the White House said in a statement. "President Bush expects federal agencies to enforce this policy and to ensure that all federal employees are protected from unfair discrimination at work."
Levin reminded Bloch of that policy yesterday. "That is not something that you believe is binding on you?" he asked.
"It is binding on me," Bloch said, "but it is not something I can prosecute in my agency. . . . I am limited by the enforcement statutes that you give me."
Federal civil rights laws ban employment discrimination on the basis of race, religion, sex, age, national origin, disability and political affiliation. Sexual orientation is not among these "protected classes."
It's a fine bit of mumbo-jumbo, as Americablog notes:
You told the Senate yesterday, Scott, that:If a federal manager fires, reassigns or takes some other action against an employee simply because that employee is gay, there is nothing in federal law that would permit the Office of Special Counsel to protect the worker, Bloch testified before the Senate Homeland Security and Government Affairs subcommittee on oversight of government management, the federal workforce and the District of Columbia.Here's the problem, Scott. You may not have the authority under the executive order to prosecute people IN COURT for violating the president's non-discrimination executive order, but that has nothing to do with whether you CAN ENFORCE the order yourself. I.e., the executive order may not permit the gay employee to sue in court, but it most certainly permits you and the entire administration to follow your president's order to not discriminate, and it most certainly gives you the power to punish any employee who does discriminate against gays and to rehire or otherwise help a gay employee who is discriminated against in the federal workplace based on their sexual orientation.
See, the thing is, Scott, you offered the Senate up a red herring yesterday. You talked about how there was no federal law permitting gay people to sue in court, but that has nothing to do with whether federal employees, yourself included, are required to follow and execute the executive orders of your president. You don't need to go to court, Scott, to rehire a gay employee that has been wrongfully fired. You don't need to go to court, Scott, to discipline a federal employee who wrongfully discriminates in violation of the president's order.
John sets up a nice response, but I think his tone is wrong. This isn't Bloch acting like a rogue. Bloch is doing the President's bidding, finding a way to get around actually enforcing the EO, after they engaged in a bit of election-year "pandering" to the middle. His job is to enact the true intent of the White House's statement, and that's exactly what he's doing.
Posted by in Accountability, Civil Rights, Culture War, Gay, Lesbian, Transgender, Government, History, Politics, Queer
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