Gays' 'Protected-Class' Status Doubted; Counsel Suspends Enforcement of Harassment Claims during Study

The Washington Times (Washington, DC), March 22, 2004 | Go to article overview

Gays' 'Protected-Class' Status Doubted; Counsel Suspends Enforcement of Harassment Claims during Study


Byline: Jerry Seper, THE WASHINGTON TIMES

The Office of Special Counsel, which protects government employees from workplace discrimination, has suspended enforcement of harassment claims based on sexual orientation, pending an analysis of whether federal law covers homosexuals.

A Clinton-era interpretation of the law had allowed such cases to be pursued.

Special Counsel Scott J. Bloch, named last year by President Bush to head the office, said the review is expected to take several weeks, noting that sexual orientation is not mentioned as a basis for discrimination in existing civil rights laws or in the statute under which the OSC operates.

In the meantime, Mr. Bloch has ordered references to workplace discrimination based on sexual orientation removed from the agency's Web site and from federal training manuals.

"It is critical that this agency be especially careful not to engage in the kind of extra-legal enforcement actions that we prosecute on a daily basis," he said. "That is why we must be especially precise in reviewing the proper limitations of this agency's enforcement powers."

At issue is whether the OSC has the authority to create a "protected class" of employees based on sexual orientation, which is not included in existing federal law and for which no precedent has been set at the federal court level.

Five years ago, former Special Counsel Elaine Kaplan, a Clinton appointee who preceded Mr. Bloch, interpreted existing law to include victims of sexual-orientation discrimination as members of a protected class, and proponents cite a 1999 executive order by Mr. Clinton as grounds for enforcement.

But the Clinton order does not "confer any right or benefit enforceable in law or equity against the United States or its representatives" and places responsibility for enforcement and implementation solely at the Equal Employment Opportunity Commission, not the OSC.

Mr. Bloch's decision to remove references to sexual orientation from the OSC Web site and training manuals brought angry criticism from Capitol Hill and homosexual rights groups. …

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