E-Mail This Article to a Friend LEGAL DISCRIMINATION Feds: Feel free to fire fags BY DAVID S. BERNSTEIN

Thousands of supervisors in federal agencies have just been told that it’s A-okay to punish an employee for being gay. After a year and a half of evading the question, Office of Special Counsel (OSC) head Scott Bloch finally made clear last week that he will not use his office to protect federal employees who are the subject of firing or other discriminatory action on the basis of their sexual orientation.

Bloch, whose office investigates discrimination, retaliation, and various whistleblower complaints made by federal-government employees, clearly did not want to admit his position last Tuesday, when he was hauled in front of the Senate Homeland Security and Governmental Affairs subcommittee on the federal workforce. There, he was grilled on a range of allegations of mismanagement and retaliation against his own employees (see "Bush’s House Homophobe," News and Features, May 6). Not long into the questioning, however, Senators Carl Levin (D-MI) and Daniel Akaka (D-HI) sought finally to pin Bloch down on the sexual-orientation question. Bloch has suggested in the past that if an employee is targeted because of gay conduct, that runs afoul of federal law, but that the statute might not cover gay status.

Levin and Akaka tried, repeatedly, to get an answer from Bloch on this exact question during his confirmation hearing in 2003, but Bloch ran rings around the queries. He did likewise when conducting a "legal review" of the issue after taking office; while announcing a new, yet vague, policy in March 2004; and every time the issue has been raised since.

In a six-minute exchange at the May 24 hearing (viewable at hsgac.senate.gov/index.cfm?Fuseaction=Hearings.Detail&HearingID=238), Bloch continued his evasiveness until an exasperated Levin finally berated him into conceding that, in fact, he believes the OSC provides no legal protection to federal employees who are fired or otherwise mistreated because of their sexual orientation. "Why did it take me five minutes to get an answer out of you?" Levin moaned. "I believe it was longer than five minutes," Bloch replied.

Bloch, who testified that his office has received "approximately 20 to 25" sexual-orientation-discrimination complaints since he took office in January 2004, even provided a defense of his interpretation. "The case law has rejected" sexual-orientation-discrimination protection for federal employees, he said, citing the 1998 case Morales v. Department of Justice, adjudicated by the US Merit Systems Protection Board.

Morales says no such thing, explains Elaine Kaplan, the previous holder of Bloch’s position as special counsel. The Morales decision interprets the protections of Title VII of the 1964 Civil Rights Act. But the OSC’s authority on discrimination cases comes from an entirely different section of the US Code — which Bloch knows full well, because, according to an OSC press release last year, Bloch underwent an extensive review of his "authority to process claims of sexual orientation discrimination under [USC] Title 5, Section 2302(b)(10)." Such matters are commonly referred to as "B10 cases" in reference to that statute.

Bloch’s testimony puts pressure back on George W. Bush, who, when the controversy first surfaced a year ago, issued a statement indicating that yes, the president does believe federal employees are legally protected against sexual-orientation discrimination. Now, Massachusetts congressman Barney Frank is getting signatures on a letter that will go to the White House next week. "We’re saying to Bush: ‘You say this is your policy; this is your employee disagreeing with your policy; what are you going to do about it?’" Frank says. The gay-advocacy group Human Rights Campaign issued a harsh statement following the hearings. The Senate subcommittee is conducting "a very thorough review" of Bloch’s testimony, according to a spokesperson. Meanwhile, thousands of gay federal employees are waiting for someone to speak up for their rights.