Counsel Under Fire for Move on Gay Bias

Scott J. Bloch, an employment lawyer from Kansas, is finding himself under siege barely two months into his five-year term as head of the U.S. Office of Special Counsel -- an obscure but powerful federal agency that processes federal worker complaints.

The 45-year-old Bloch created a stir last month when he announced that he was reviewing the office’s policy prohibiting discrimination by federal agencies against workers based on their sexual orientation. He said he was concerned that his predecessors had misconstrued the law and that the agency was overstepping its legal authority.

But the move by Bloch -- formerly an official in the Justice Department’s Task Force for Faith-Based and Community Initiatives -- is raising eyebrows in an election year already infused with debate about traditional values.

A group representing gay and lesbian federal employees has charged that his actions amount to “mere political pandering to the conservative right,” and has suggested that he consider resigning.

Whistle-blower groups are concerned that the move portends backsliding on worker protections.

And some members of Congress that cleared Bloch’s nomination last year are concerned that he misled them, and want an explanation.

“During the confirmation process you assured us that you were committed to protecting federal employees against unlawful discrimination,” a group of four senators on the Senate Governmental Affairs Committee said in a letter to Bloch last month.

“We are concerned that the recent changes ... might give federal employees the opposite impression,” the group said, adding that some of Bloch’s actions to date appeared “inconsistent” with his previous statements to the committee. The bipartisan letter was signed by Sen. Susan Collins (R-Maine), the committee’s chairman, and Sen. Joe Lieberman (D-Conn.), the panel’s ranking Democrat, among others.

In an interview with the Los Angeles Times, Bloch denied misleading anyone, and emphasized that the legal review of the regulations was only getting underway and that no final decisions had been made.

Bloch -- an employment-law specialist who grew up in Southern California, the son of a TV scriptwriter -- said he had long been concerned with the rights of aggrieved workers.

“It certainly does give me concern when people have this misperception that I am looking to take away rights,” he said. “I just have a very strong, principled belief that I need to follow the law.” The special counsel office he heads acts as a sort of federal watchdog on behalf of whistle-blowers and other federal employees who have suffered retaliation.

The office has a charter to crack down on certain kinds of employment practices by federal managers, including the denial of a promotion because of nepotism.

At issue in the gay-rights flap is a provision of the law that a worker’s off-duty conduct cannot be used as grounds to punish someone unless it affects his job performance.

In the past, that provision has been interpreted to prohibit retaliation based on sexual orientation.

The office only gets a handful of such complaints every year. But it did reach a settlement last June on behalf of an applicant for a job with the Internal Revenue Service who had been denied the job by a supervisor who referred to him in a derogatory manner. The applicant received back pay and the supervisor was disciplined.

During his confirmation hearing last November, Bloch was asked whether an employee who suffered retribution for having attended a gay pride event would have a claim under the law, and he responded that he felt the employee likely would.

After he took office in January, he said he was approached by senior staff on the legal question of whether sexual orientation by itself constituted “conduct” for purposes of the statute -- as opposed to an activity like attending a gay-oriented event.

Bloch said he and the staff felt the answer was unclear, and pending the outcome of a legal review, they decided to pull materials about sexual-orientation discrimination from the office website, including a press release touting the IRS settlement.

To some groups, the move was a declaration of war. While Bloch strongly denies it, these groups are concerned that he has already prejudged the issue, and they fear the worst.

Tom Devine, legal director of the Government Accountability Project, a whistle-blower advocacy group, said he is concerned that the decision portends a series of policy changes that may adversely affect workers.

The Federal Globe -- a group representing gay, lesbian and bisexual federal employees -- has called upon Congress to investigate whether Bloch misrepresented his views during his confirmation -- and for him to consider resigning.

Elaine Kaplan, a Washington attorney who headed the Office of Special Counsel until last May, said she felt Bloch “was completely wrong” and “being extremely legalistic” in his analysis.

“He may ultimately realize that the distinction he is drawing is nonsensical. But it says something about his view of the law. This is one of the first things he did when he got the job,” Kaplan said. “He is sending out a message that people are not protected.” The newly installed director insists he is doing no such thing, but merely enforcing the law as he sees it.

Born in New York City, Bloch moved with his family to Los Angeles in the early 1960s; his father was a writer for TV programs like “Gilligan’s Island,” “Bonanza,” and “The Flintstones.” Bloch, who graduated from the University of Kansas Law School, said witnessing his father working in the entertainment industry made him sensitive to the plight of workers.

“My father taught me my sense of the underdog and protecting individuals. He was in an industry that had a union that helped protect him. That was very important to me,” he said. “I adopted that in my law practice, and it was the most rewarding aspect of my work.”