Kelley Demands Special Counsel Return Anti-Discrimination Language To OSC Material

Press Release March 26, 2004

Washington, D.C.—In a sharply-worded letter, the leader of the nation’s largest independent union of federal workers has demanded that the U.S. Special Counsel “immediately restore” all reference to its jurisdiction to handle claims of discrimination based on sexual orientation to the anti-discrimination agency’s web site, forms and publications

Failure to do so, said National Treasury Employees Union (NTEU) President Colleen M. Kelley, continues a course of action by the Office of Special Counsel (OSC) that will generate months of “needlessly created confusion” for federal employees “about their basic job rights.”

President Kelley made her demand in a lengthy letter to Special Counsel Scott Bloch. The letter was in response to his answer to a request from NTEU for an explanation of Bloch’s decision to remove all references from the OSC web site and several OSC publications about the agency’s jurisdiction to accept complaints from federal workers of discrimination based on sexual orientation.

Kelley said she takes “serious exception” to Bloch’s apparent view—outlined in his response to her earlier letter and in public comments—that federal law bars discrimination against gay and lesbian federal employees only if that discrimination is based on their homosexual “conduct” and that they have no protection if based on their “status” as gays or lesbians. “There is simply no basis in law or common sense to draw a distinction between conduct and status in this context,” Kelley said.

President Kelley said that interpreting federal law as allowing a supervisor to take personnel actions based on a dislike of the sexual orientation of gays and lesbians “would be to introduce an utterly absurd distinction into the law of federal employment—with frightening consequences.”

She pointed out that it has been the policy of the Executive Branch for nearly 25 years to treat discrimination based on sexual orientation as covered by the civil service law’s prohibition against discrimination based on conduct that does not adversely affect performance. Kelley also sharply criticized Bloch for characterizing this long-standing legal interpretation both by the Department of Justice and the Office of Personnel Management as “controversial.”

Noting that Bloch has said he removed the materials about OSC’s jurisdiction pending a review of legal authority on the matter, Kelley wrote that because the law is well established and readily ascertainable, “we are left to wonder whether you are engaged in a stalling tactic as you attempt to roll back protections against discrimination in the federal workplace.”

As the largest independent federal union, NTEU represents some 150,000 employees in 29 agencies and departments.