March 12, 1999
MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: Implementation of Executive Order 13087
On May 28, 1998, the President issued Executive Order 13087, amending Executive Order 11478, Equal Employment Opportunity in the Federal Government, and prohibited discrimination based on sexual orientation against any civilian Federal employee or applicant for employment. This memorandum provides the Army policy for processing complaints of discrimination based on sexual orientation.
Federal civil rights laws do not specifically address discrimination on the basis of sexual orientation. However, the Civil Service Reform Act of 1978, 5 U.S.C. §2302(b)(10), prohibits any employee who has authority to take personnel actions from discriminating for or against any employee or applicant for employment on the basis of conduct which does not adversely affect either the employee's own job performance or the performance of others.
Complaints of sexual orientation discrimination should, as a rule, be handled under the Department of Defense administrative grievance procedure, a negotiated grievance procedure, if appropriate, or as appeals to the Merit Systems Protection Board when otherwise appealable actions are involved. Where none of these administrative forums is available, employees or applicants who feel they have been discriminated against based on sexual orientation should be advised of procedures for filing complaints with the Office of Special Counsel. Discrimination based on sexual orientation may violate merit systems principles outlined in 5 U.S.C. 2301 and constitute a prohibited personnel practice as described in 5 U.S.C 2302.
Combined complaints that raise claims of sexual orientation discrimination and also raise claims covered by a statutory EEO complaint process should be divided. Sexual orientation discrimination claims may not be processed under the EEO complaint process. Conversely, claims of discrimination covered by 29 C.F.R. Part 1614 may not be processed under the DoD administrative grievance system. Therefore, if an aggrieved person raises a combined complaint of sexual orientation discrimination and discrimination cognizable under 29 C.F.R. Part 1614, the person should be advised to follow the appropriate procedure for each type of complaint.
As indicated above, sexual orientation is not a protected category under statutes such as the Civil Rights Act of 1964, as amended, nor EEOC regulations at 29 C.F.R. Part 1614. Therefore, under the grievance processes, the appropriate deciding official should determine whether the grievant has been discriminated against based on sexual orientation. If that official finds by a preponderance of the evidence that the grievant has been discriminated against, he or she will take or recommend appropriate action.
Beginning in October 1999, commanders are requested to submit semi-annual reports through command channels to the Director, Equal Employment Opportunity Agency, Office of the Assistant Secretary (Manpower and Reserve Affairs). The reports should include the number of sexual orientation complaints processed under this policy during the previous six months and the dispositions of those complaints.
Patrick T. Henry
Acting Secretary of the Army
(Manpower and Reserve Affairs)
OFFICE, SECRETARY OF THE ARMY
US ARMY EUROPE AND SEVENTH ARMY
US ARMY FORCES COMMAND
US ARMY MEDICAL COMMAND/SURGEON GENERAL
US ARMY INTELLIGENCE & SECURITYCOMMAND
EIGHTH US ARMY
US ARMY MATERIEL COMMAND
US ARMY MILITARY DISTRICT OF WASHINGTON
US ARMY MILITARY ENTRANCE PROCESSING COMMAND
MILITARY TRAFFIC MANAGEMENT COMMAND
US ARMY RESERVE PERSONNEL COMMAND
US ARMY SPECIAL OPERATIONS COMMAND
US ARMY SOUTH
US ARMY SPACE & MISSILE DEFENSE COMMAND
US ARMY TRAINING & DOCTRINE COMMAND
US ARMY PACIFIC
CHIEF OF ENGINEERS
US ARMY CRIMINAL INVESTIGATION COMMAND
SUPERINTENDENT, US MILITARY ACADEMY
COMMANDER IN CHIEF, US SOUTHERN COMMAND