LEGAL INTERPRETATION OF DISCRIMINATION STATUTE

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Thursday, 8 January 2009

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WASHINGTON - Scott J. Bloch, Special Counsel of the U.S. Office of Special Counsel (OSC) today announced he is conducting a review of many aspects of the agency, including personnel, structure of the agency, the backlog of prohibited personnel practice cases and disclosure cases, as well as OSC policies. “We are in the process of evaluating,” said Mr. Bloch, “the backlog of prohibited personnel practices, whistleblower disclosures, and Hatch Act cases, to determine how best to utilize the resources we have to improve the efficiency of our office and better serve the federal merit protection system. I have challenged our excellent team to eliminate these backlogs by the end of the year.

“In addition, we are reviewing all policies of the office to determine the legal basis and prudence of each. In the course of this review, we have removed materials from the agency website in several policy areas and are conducting a legal analysis of the basis on which this office has previously reviewed claims of ‘sexual orientation’ discrimination, particularly the significance of the specific language under 5 U.S.C. § 2302(b)(10). I am dedicated to the principles of fairness and nondiscrimination in federal employment for which this Office is known. The Office, and I personally, remain committed to enforcing all prohibited personnel practices, including discrimination, as the statute says, ‘on the basis of conduct which does not adversely affect the job performance of the employee or applicant or the performance of others[,]’ regardless of an individual’s orientation.

"It appears that, beginning five years ago, this Office based jurisdiction in this area on the amendment to Executive Order 11487 made by Executive Order 13087. But Executive Order 11487, as further amended by Executive Order 13152, expressly states that it 'does not confer any right or benefit enforceable in law or equity against the United States or its representatives.' Further, Executive Order 11487, as amended, expressly places responsibility for its enforcement and implementation in the EEOC, not in OSC. This raises questions as to my power to enforce this Executive Order and reinforces my decision to conduct a full legal review of this policy. Therefore, OSC has removed these materials until a thorough legal analysis can be completed to clarify this area of the law.”

“Under the oath of office I took, it is my obligation to uphold the law,” Mr. Bloch continued. “First, we must determine what the law is when, as here, our enforcement power is not based on the plain words of the statute enacted by Congress and interpreted by the courts. We intend to continue enforcement for all manner of personal conduct that falls within the meaning of the statute, and to consult with professionals in my office, as well as outside my office, to ensure that a thorough and fair legal review occurs so that OSC gives the full measure of justice to all federal employees.”

OSC is an independent investigative and prosecutorial agency. Its primary mission is to safeguard the merit system in federal employment by protecting federal employees and applicants from prohibited personnel practices, especially retaliation for whistleblowing. OSC also has jurisdiction over the Hatch Act and the Uniformed Services Employment and Reemployment Rights Act.

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