49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 109–313 

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 

2 

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. 

3 

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 bill prepared 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 

4 

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 

§ 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); øor¿ 

(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. 

* * * * * * * 

(5) 

1OPM, 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). 2OPM, Addressing Sexual Orientation Discrimination in Federal Civilian Employment: A 

Guide to Employee’s Rights http://www.opm.gov/er/address2/Guide04.asp 

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. § 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. 

§ 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 

6 

3OLC, Termination of an assistant United States Attorney on Grounds Related to his Acknowledged Homosexuality, 3 (Mar. 11, 1983) (7 op. OLC 46). 

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. 

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. § 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. 

Æ