[House Report 109-313]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 109-313
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CLARIFICATION OF FEDERAL EMPLOYMENT PROTECTIONS ACT
_______
November 18, 2005.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Tom Davis of Virginia, from the Committee on Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 3128]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Reform, to whom was referred the
bill (H.R. 3128) to affirm that Federal employees are protected
from discrimination on the basis of sexual orientation and to
repudiate any assertion to the contrary, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
CONTENTS
Page
Contents......................................................... 1
Committee Statement and Views.................................... 2
Section-by-Section............................................... 2
Explanation of Amendments........................................ 2
Committee Consideration.......................................... 2
Rollcall Votes................................................... 2
Application of Law to the Legislative Branch..................... 3
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 3
Statement of General Performance Goals and Objectives............ 3
Constitutional Authority Statement............................... 3
Federal Advisory Committee Act................................... 3
Unfunded Mandate Statement....................................... 3
Committee Estimate............................................... 3
Budget Authority and Congressional Budget Office Cost Estimate... 3
Changes In Existing Law Made by the Bill as Reported............. 4
Minority Views................................................... 5
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 3128 clarifies Congressional intent with regard to
statutory protections available to Federal employees facing
discrimination on the basis of sexual orientation. The
legislation states that Congressional intent as well as current
policy and practice prohibit Federal employment discrimination
on the basis of sexual orientation. The legislation amends
current law to specifically prohibit discrimination based on
sexual orientation.
LEGISLATIVE HISTORY
On June 6, 2005, Rep. Henry Waxman (D-CA) introduced H.R.
3128, the ``Clarification of Federal Employment Protection
Act.'' On September 15, 2005, the committee approved H.R. 3128
by voice vote and ordered it reported favorably to the full
House of Representatives for consideration.
Section-by-Section
Section 1
Names this legislation the ``Clarification of Federal
Employment Protections Act.''
Section 2
This section states that, in order to dispel any public
confusion, Congress hereby repudiates any assertion that
Federal employees are not protected from discrimination on the
basis of sexual orientation. This section also states that it
is the sense of Congress that, in the absence of the amendment
made by subsection (c), discrimination against Federal
employees and applicants for Federal employment on the basis of
sexual orientation is prohibited by section 2302(b)(10) of
title 5, United States Code. Finally, this section would amend
section 2302(b)(1) of title 5, United States Code, by adding at
the end the following: ``(F) on the basis of sexual
orientation.''
Explanation of Amendments
There were no amendments offered.
Committee Consideration
On September 15, 2005, the Committee met in open session
and ordered favorably reported the bill, H.R. 3128, by voice
vote.
Rollcall Votes
No rollcall votes were held.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 3128. Article I, Section 8, Clause 18 of the
Constitution of the United States grants the Congress the power
to enact this law.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement whether
the provisions of the reported include unfunded mandates. In
compliance with this requirement the Committee has received a
letter from the Congressional Budget Office included herein.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 3128. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
billprepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 3128 from the Director of
Congressional Budget Office:
H.R. 3128--Clarification of Federal Employment Protections Act
CBO estimates that enacting H.R. 3128 would have no
significant impact on the federal budget. Enacting the bill
would not affect direct spending or revenues. H.R. 3128
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and would not
affect the budgets of State, local, or tribal governments.
H.R. 3128 would amend federal law to codify that
discrimination against Federal employees based on sexual
orientation is a prohibited personnel practice. Because the
legislation would put into statute current policy and practice,
CBO estimates that implementing H.R. 3128 would have no
significant impact on the budget.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 2302 OF TITLE 5, UNITED STATES CODE
Sec. 2302. Prohibited personnel practices
(a) * * *
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) discriminate for or against any employee or
applicant for employment--
(A) * * *
* * * * * * *
(D) on the basis of handicapping condition,
as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791);
[or]
(E) on the basis of marital status or
political affiliation, as prohibited under any
law, rule, or regulation; or
(F) on the basis of sexual orientation.
* * * * * * *
MINORITY VIEWS
I introduced H.R. 3128, the ``Clarification of Federal
Employment Protection Act,'' to reaffirm that Federal employees
are protected from discrimination on the basis of sexual
orientation and to repudiate any assertion to the contrary. At
a time when our federal employees are working tirelessly on
behalf of the Nation, we should be doing our utmost to ensure
that all are protected against all forms of discrimination.
Unfortunately, some in the Bush Administration appear to have
abandoned a long-standing, bipartisan interpretation of the law
that protects Federal employees from discrimination based on
sexual orientation.
Until recently, the Bush Administration followed a long-
standing policy prohibiting job discrimination against gay
Federal employees. However, Special Counsel Scott Bloch, head
of the Office of Special Counsel (OSC), which is responsible
for investigating and prosecuting retaliation claims in the
Federal workplace, including retaliation resulting from
discrimination, has deviated from this long-held policy.
The statutory provision at issue is 5 U.S.C. 2302(b)(10),
which makes it unlawful to ``discriminate for or against any
[Federal] employee or applicant for employment on the basis of
conduct which does not adversely affect the performance of the
employee or applicant or the performance of others.'' Enacted
as part of the Civil Service Reform Act of 1978, this provision
has been interpreted by both Republican and Democratic
administrations to prohibit discrimination against Federal
workers on the basis of their sexual orientation, including
both discrimination based solely on ``orientation'' or
``status'' and sexual conduct.
In 1980, the Director of the Office of Personnel Management
(OPM) advised Federal agencies that under 5 U.S.C.
Sec. 2302(b)(10) ``applicants and employees are to be protected
against inquiries into, or actions based upon, non job-related
conduct, such as religious, community, or social affiliations,
or sexual orientation.'' \1\ This position has been repeatedly
reaffirmed by OPM. In fact, OPM guidance issued in a 1999
publication that remains available today states that OPM ``has
interpreted this statute [10 U.S.C. Sec. 2302(b)(10)] to
prohibit discrimination based on sexual orientation.'' \2\ The
Justice Department has issued similar guidance. An opinion
written more than 20 years ago by Theodore Olson, then
Assistant Attorney General heading the Office of Legal Counsel,
states that ``it is improper to deny employment or to terminate
anyone on the basis either of sexual preference or of conduct
that does not adversely affect job performance.'' \3\ Prior to
the current Special Counsel's tenure, OSC also interpreted this
provision to prohibit discrimination based on sexual
orientation.
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\1\ OPM, Memorandum on ``Policy Statement On Discrimination On The
Basis of Conduct Which Does Not Adversely Affect The Performance Of
Employees Or Applicants For Employment'' (May 12, 1980).
\2\ OPM, Addressing Sexual Orientation Discrimination in Federal
Civilian Employment: A Guide to Employee's Rights http://www.opm.gov/
er/address2/Guide04.asp
\3\ OLC, Termination of an assistant United States Attorney on
Grounds Related to his Acknowledged Homosexuality, 3 (Mar. 11, 1983) (7
op. OLC 46).
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Unfortunately, the current Special Counsel continues to
refuse to investigate certain claims of sexual orientation
discrimination. Within weeks of taking office in January 2004,
and apparently without consulting OPM, he ordered the removal
of all references to OSC's jurisdiction to enforce sexual
orientation discrimination protections from OSC's website.
Mr. Bloch explained his reasoning in testimony on May 24,
2005, before the Senate Committee on Homeland Security and
Governmental Affairs. He contends that 5 U.S.C.
Sec. 2302(b)(10) prohibits discrimination based on ``conduct''
and does not mention discrimination based on ``orientation'' or
status. He apparently concludes that OSC would exceed its
jurisdiction if it were to investigate and prosecute cases
alleging discrimination based solely on sexual orientation
where no conduct is in question.
The distinction the Special Counsel seems to be making
between discrimination based on sexual ``conduct'' and sexual
``orientation'' is incomprehensible. His suggestion that such a
distinction exists is the reason for this clarifying
legislation. When a Federal agency discriminates against an
employee or applicant because he or she is gay, the
discrimination is rooted in disapproval of their sexual conduct
or other manifestation of the employee's ``lifestyle,'' not
some abstract disapproval of the person's ``orientation.''
There is no meaningful, real-world distinction between
discrimination based on ``conduct'' and discrimination based on
``orientation'' because conduct and orientation are
inextricably intertwined in this context.
H.R. 3128 would make clear the protection afforded by the
Civil Service Reform Act of 1978 by explicitly making
discrimination on the basis of sexual orientation a prohibited
personnel practice under the act.
I commend my colleagues--Representatives Shays, Danny
Davis, Foley, Frank, Kolbe, Hoyer, Engel, Baldwin, Van Hollen,
and Norton--for their leadership on this issue and look forward
to working with them to obtain rapid approval of this bill in
the House.
Henry A. Waxman.
Eleanor Holmes Norton.