This is big news, particularly for people who think that you can’t be fired because your sexual orientation in this country. Even when you think you are protected, you may not be.
Monica Goodling and D. Kyle Sampson, key aides to former Attorney General Alberto Gonzales, violated federal law and departmental policy by considering political affiliation and other improper factors in Justice Department hiring decisions, according to another devastating report from DOJ’s Inspector General and the department’s Office of Professional Responsibility, issued this morning.
In another matter, we found that Goodling violated Department policy and federal law, and committed misconduct, when she refused to extend the detail of a career AUSA, and later tried to block the AUSA from obtaining other details, at least in part because of rumors regarding the AUSA’s sexual orientation.
The discrimination charge in the document is notable because of the interpretation of the protection in Civil Service Reform Act; there is no specific clause on sexual orientation. Read this passage from the report (below the fold) carefully…
However, both Department policy and federal law prohibit discrimination in hiring for Department career positions on the basis of political affiliations. The Department’s policy on non-discrimination is contained in the Code of Federal Regulations, Section 42.1(a) of 28 C.F.R. Part 42, Subpart A, which states: It is the policy of the Department of Justice to seek to eliminate discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, political affiliation, age, or physical or mental handicap in employment within the Department and to assure equal employment opportunity for all employees and applicants for employment (emphasis added).6
…6 While the language of 42.1(a) is aspirational, it is clear that the regulation prohibits the conduct it describes. See 28 C.F.R. § 42.1(b) (“No person shall be subject to retaliation for opposing any practice prohibited by the above policy [42.1(a)]“); Attorney General Order 2037-46, adopting the current version of 42.1(a), stating that it amended 42.1 “to include sexual orientation as a prohibited basis for discrimination” and characterized 42.1(b) as prohibiting “retaliation for opposing a prohibited practice.” 61 Fed. Reg. 34,729, 34,729 (July 3, 1996); Action Memorandum for the Attorney General from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Final Rule Amending the Policy Statement Regarding Equal Employment Opportunity Within the Department of Justice (June 18, 1996) (stating that the proposed order would “codify the Department’s policy prohibiting discrimination on the basis of sexual orientation”).
It is a department workaround, not law, because there are no legal protections specifically in place for sexual orientation (or gender identity and expression). Aspiration alone made it possible for Goodling to do what she did because no Bushie was going to fight that battle.
The Civil Service Reform Act’s (CSRA) hiring practices regarding career employee hires is equally aspirational — and thus without teeth. Again, from the report:
federal agencies must adopt hiring practices for career employees in which: selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 5 U.S.C. § 2301(b)(1).
…All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
Whoops, no specific LGBT language in there, just a loophole a truck could drive through. We do not have employment rights at the federal level that apply to the above-mentioned classes. Zip, nada.
This kind of political firing occurs in many places around the country all the time – the bottom line, unless city or state law protect you, being fired for your sexual orientation or gender identity is perfectly legal. My wife works for the state, and there’s nothing to stop her from being legally axed solely for that reason if some fundie gets a wild hair. That’s why we need ENDA.