President’s order protects workers

President’s order protects workers

It was only three paragraphs long and received little publicity. But an executive order issued by President Bill Clinton last week, banning anti-Gay discrimination against federal civilian employees, was nevertheless historic, capping a 41-year struggle to end bias in the federal workforce.

Court decisions, civil service rules, and legislation have given Gay federal employees significant – though inconsistent – protection over the years. Clinton’s May 28 action formally adds sexual orientation to Executive Order 11478, which banned job discrimination against federal workers based on race, color, religion, sex, national origin, handicap and age.

“The order,” Clinton said in a statement, “provides a uniform policy for the federal government to prohibit discrimination based on sexual orientation in the federal civilian workforce and states that policy for the first time in an executive order of the president.”

The White House had previously encouraged agencies to include sexual orientation in their non-discrimination policies. Many did so, but a Blade survey last year turned up a significant number that didn’t. Even many agencies that formally banned anti-Gay job bias failed to publicize enforcement procedures, according to a Gay federal employee group.

Frank Kameny, the longtime Washington activist whose dismissal on grounds of homosexuality in 1957 led him to begin the fight to end the federal government’s anti-Gay job bias, joined other activists in hailing Clinton’s executive order, which covers 1.8 million civilian workers.

“It doesn’t do anything new,” said Kameny, now 73, “but it ties up loose ends and, therefore, brings to closure to what has been a 25-year…improvement process. …The deed is done, it is over, we can move on to other battles. It is a total victory which could not have been conceived when I was fired in 1957.”

Elaine Kaplan, the openly Lesbian special counsel in the U.S. Office of Special Counsel, said that, while the executive order doesn’t add “any new substantive legal rights,” it does “confirm that it is executive branch policy” to bar anti-Gay discrimination in the federal workforce.

“I think it will help employees who suffer discrimination based on their sexual orientation,” Kaplan said. “It will bolster their cases.”

“What we were trying to do,” said Richard Socarides, a special assistant to Clinton and his liaison with the Gay community, “was remedy the fact that a lot of federal workers did not know that the federal government did not discriminate on the basis of sexual orientation, and that they in fact had remedies to pursue a claim of…discrimination.”

The executive order, Socarides said, “is going to allow us now to proceed on a public education campaign” to inform federal workers “that they have these rights and what the procedures are to enforce violations.”

Frank Kameny
“It ties up loose ends,” said Frank Kameny of the order. Kameny was dismissed from his federal job in 1957 on grounds of homosexuality. (by Clint Steib)

Despite the executive order, Gay federal workers still lack significant protection enjoyed by their straight counterparts, for two major reasons:

First, uniformed members of the armed services are automatically excluded from the protection offered by the executive order, since they are covered by the “Don’t Ask, Don’t Tell, Don’t Pursue” policy proposed by Clinton and approved by Congress. That policy, under challenge in the courts as discriminatory, is strongly defended by the Administration. And,

Second, sexual orientation is not covered by the 1964 Civil Rights Act, which means, as Clinton noted in his statement, that the executive order “cannot create any new enforcement rights,” such as the ability to bring bias complaints to the Equal Employment Opportunity Commission (EEOC).

Reiterating his support for the Employment Non-Discrimination Act, Clinton said, “I again call upon Congress to pass this important piece of civil rights legislation, which would extend these basic employment discrimination protections to all Gay and Lesbian Americans.”

“Individuals,” Clinton said, “should not be denied a job on the basis of something that has no relationship to their ability to perform their work.”

Rob Sadler, an attorney with the Department of Commerce and president of Federal GLOBE (Gay, Lesbian or Bisexual Employees), said that, even though Gay federal workers still lacked civil rights protection, the executive order has “more than symbolic” significance.

While many agencies have announced nondiscrimination policies that include Gays, Sadler said, the executive order will be “another impetus” to get laggard agencies to issue similar statements. Also, he said, the order will spur many agencies to publicize the previously “hidden procedures” available to Gays to complain about discrimination.

These procedures include filing an administrative complaint within an agency (though barred from appealing that agency’s decision to the EEOC or the courts). In addition, employees who believe they have been fired or suspended for more than 14 days due to sexual orientation discrimination can complain to the Merit Systems Protection Board.

Less serious complaints, like a failure to receive a promotion or a transfer, can be submitted as a grievance by employees covered under collective bargaining agreements, or can be filed with the Office of Special Counsel, which investigates possible violations of “prohibited personnel practices,” including sexual orientation discrimination.

In the past, Sadler said, many agencies argued that because sexual orientation is not included in civil rights law, they had no authority to implement and publicize those protections that Gays did enjoy.

“Most agencies had issued non-discrimination policies,” Sadler says, “but had not followed up to tell employees what does his mean, where you can go [to complain]. In that sense, many of the non-discrimination statements may have been symbolic.”

The executive order, Sadler said, in effect tells agencies to explicitly detail and distribute the complaint procedures for employees who believe they have been subjected to anti-Gay discrimination.

“That will be a major change,” said Sadler. “Our work environment is different now than it was [before the executive order].”

Kaplan of the U.S. Office of Special Counsel agreed that many Gay federal employees are not aware of the protection against discrimination that they have gained over the years.

Chai Feldblum
Law professor Chai Feldblum said those who believe anti-discrimination means affirmative action are “simply wrong.” (by Clint Steib)

“Now, hopefully the executive order will draw more attention to it,” Kaplan said.

Twenty years ago, the Civil Service Reform Act of 1978 put into law regulatory changes, made in 1975 in response to court decisions, that removed homosexuality as a bar to federal and civil service civilian employment and promotion.

The 1978 law prohibited discrimination against federal employees for “conduct which does not adversely affect” their job performance. That has been interpreted as making sexual orientation discrimination a “prohibited personnel practice.” (The law did not affect the issuing of security clearances by such agencies as the FBI and CIA, which denied clearances to Gays on grounds homosexuality might subject them to blackmail.)

During his 1992 presidential campaign, Clinton promised to sign an executive order barring sexual employment discrimination in the federal civilian workplace (and another order ending the ban on Gay military personnel). When the military plan came under intense fire from the Pentagon and Congress during his first weeks in office, Clinton backtracked on that order – and the civilian directive went on hold.

“The likely time to have done [the civilian order] would have been at the very beginning of the Administration,” says Socarides. “Having been through four or five months around the debate on Gays in the military, I would say that the political climate for doing this by way of executive order was probably not conducive.”

Instead, reportedly believing that an order protecting Gay federal civilian employees might be overturned by Congress, the Administration in late 1993 decided to encourage individual agencies to issue policies banning sexual orientation discrimination. (In 1995, Clinton signed an executive order that barred federal agencies from denying security clearances to applicants solely on the basis of sexual orientation.)

But last year’s investigation by the Blade showed that almost 25 percent of federal employees had not been formally notified in policy statements that sexual orientation discrimination against federal civilian employees is illegal. The Blade survey found that three of the government’s 16 cabinet departments and 39 of its 72 independent agencies had not added sexual orientation to their non-discrimination statements.

Socarides said the Blade survey was instrumental in leading the White House to undertake its own legal and policy review, which Socarides said confirmed “confusion by personnel managers and federal employees as to exactly what their rights were.”

As a result, Socarides said, Bruce Reed, who heads Clinton’s Domestic Policy Council, asked his staff early this year to prepare the executive order.

“While for the most part the federal government is a good place for Gays and Lesbians to work,” Socarides said, “clearly there are pockets where Gays and Lesbians suffer from discrimination. This sends a message. …It makes the federal government the largest employer with a written sexual orientation non-discrimination policy.”

Sadler said GLOBE, which has 40 affiliates with 4,000 to 6,000 members, had hoped Clinton would issue the executive order sooner. But with hindsight, says Federal GLOBE past president Leonard Hirsch, he is glad the executive order was delayed.

“This process of doing it agency by agency meant that [GLOBE] had to educate a lot of people,” Hirsch said. “That process is really at the heart of any non-discrimination program: Getting people to understand what is discrimination, why it’s bad and how it can be stopped and fought….

“Having done [the executive order] much earlier would have been symbolically important,” Hirsch said, “and would have made us all feel good, but having done it this way gives us a much more long-lasting solution.”

The executive order drew a strong attack from the anti-Gay Family Research Council, whose president, Gary Bauer, called on Congress to rescind the “outrageous” directive.

In a statement, Bauer said the order will affect not only all federal employees, but “possibly anyone who received a federal grant or contract with the federal government.

“In other words, it will force a special preference for homosexuality into government and private workplaces,” Bauer asserted.

But Chai Feldblum, professor of law at Georgetown University Law Center, said there is no reference in the executive order to federal contractors or affirmative action.

“It would be nice to have a prohibition [on anti-Gay discrimination] for every entity that receives a federal contract,” Feldblum said, “but this is not what the executive order does.”

“Waving the specter of affirmative action is a classic misstatement that the [Family Research Council] always makes,” said Feldblum. “They automatically assume that anti-discrimination means affirmative action. That’s simply wrong.”

The Washington Times quoted House Majority Leader Dick Armey (R-Tex.), a religious right supporter, as attacking the order.

“Once again,” Armey said, “this Administration pushes extreme policies on behalf of a narrow special interest group. …I call on the president to reconsider this decision.”

Two national Gay organizations – the National Gay and Lesbian Task Force and the Human Rights Campaign – hailed Clinton’s action.

HRC political director Winnie Stachelberg said she is certain Bauer will find some support among legislators for his call to rescind the executive order. But Stachelberg said that, with corporations increasingly adopting policies barring anti-Gay job discrimination and with polls finding most Americans saying they oppose such discrimination, she doubts Congress will overturn Clinton’s directive.

“I don’t see Congress being out of step with the American people, being out of step with corporate America,” Stachelberg said.

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