Federal agency quietly reasserts pro-gay policy
by Matthew S. Bajko
Federal workers who face anti-gay harassment on the job can once again use a little known federal office to seek legal recourse, the Bay Area Reporter has learned.
The Office of Special Counsel late last year quietly reinstated its long-standing policy enacted during the Clinton administration to accept such allegations of discrimination for investigation and possible enforcement. Bill Reukauf, the agency's associate special counsel, ruled that the agency would accept such an allegation under federal statutes.
Reukauf is the acting head of the office as President Barack Obama has yet to nominate a permanent person to the post.
"The short answer is that, yes, we would accept such an allegation under 5 USC sec. 2302(b)(10). However, we note that neither the board nor the courts have resolved whether sexual orientation alone is enough under the statute," wrote Darshan A. Sheth, the spokesman for the counsel's office, in an e-mail to the B.A.R.
The federal statute prohibits discrimination on the basis of "conduct that does not adversely affect the performance of the employee or applicant or the performance of others." Whether the Office of Special Counsel also had the authority to prosecute cases other than actual conduct in which there are "reasonable grounds ... to infer that those engaging in discriminatory acts on the basis of sexual orientation have discriminated on the basis of imputed private conduct" had been in question under the Bush administration.
Sheth explained that the office "had a long-standing policy to accept such allegations of discrimination for investigation and possible enforcement" but "the previous Special Counsel did not follow that policy." Reukauf reinstated the prior policy, wrote Sheth, but until now, "We have not made any formal or public announcement about our return to our previous policy."
The decision effectively puts to an end any confusion caused by a directive instituted under the Bush administration that had restricted the federal agency from representing certain anti-gay discrimination cases sought by employees of the U.S. government. In 2004 then Office of Special Counsel head Scott Bloch declared that federal law did not protect workers who faced on-the-job discrimination based on their sexual orientation or "status" as gays and lesbians.
Bloch had insisted the special counsel could only act on cases where the discrimination was based on a person's "homosexual conduct," but after a legal review of the policy Bloch reversed course in April of that year and announced "discrimination in the federal workforce on the basis of sexual orientation is prohibited," according to a statement he released.
Despite that determination, he also said that the agency saw no need to update its Web site materials regarding the legal protections for LGBT employees and that his agency would "review and revise those materials as necessary to ensure that employees are fully aware of the protections provided."
Confusion over just what claims LGBT federal employees could file with the office appears to have lingered ever since. El Cerrito resident Lillian "Ann" Williams, an out lesbian who has filed claims with the United States Equal Employment Opportunity Commission alleging she endured anti-gay harassment while employed at the Department of Veterans Affairs' Oakland Regional Center, said she did not know she could also file a complaint with the legal counsel office until this month.
"Federal agencies are not required to tell federal employees they have a complaint process available for sexual orientation through the Office of Special Counsel. For years they have been investigating complaints about sexual harassment, but nobody knows about it," said Williams, who told the B.A.R. last week she intends to file a claim with the office. "Think of all the people who have walked away thinking they had no recourse because of anti-gay stuff."
There is no statute of limitations on when current federal employees, former federal employees, and applicants for federal employment can file claims with the Office of Special Counsel. For more information about the agency, visit http://www.osc.gov/.