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K Equal Opportunity

K Equal Opportunity

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Published by Tom Carpenter
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Published by: Tom Carpenter on Dec 30, 2011
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MILITARY OUTREACH COMMITTEEPolicy and Legal Team2 August 2010
Subj: EQUAL OPPORTUNITY/AFFIRMATIVE ACTIONBACKGROUNDThe Military Outreach Committee (MOC) formed the Policy and LegalTeam to assist the Department of Defense’s Comprehensive Review WorkingGroup (CRWG) in addressing potential issues previously identified regarding theimplementation of repeal of the law commonly known as “ Don’t Ask, Don’tTell” (DADT).DISCUSSIONIssue: How would equal opportunity and affirmative action programs applyto gay, lesbian and bisexual (GLB) Servicemembers?Rule: Currently, under DADT there is no equal treatment of GLBservicemembers – discharge is required except in rare circumstances.The Department of Defense (DoD) has an existing Military EqualOpportunity (MEO) Program.
See DOD Directive 1350.2, Department of DefenseMilitary Equal Opportunity (MEO) Program (August 18, 1995).
That Directiveimplements
Secretary of Defense Memorandum “Equal Opportunity (EO)” March3, 1994, Secretary of Defense Memorandum “Prohibitions on Sexual Harassment in the Department of Defense” August 22, 1994,
DOD Human Goals Charter,May 19, 1994
.The DoD Human Goals Charter seeks “[t]o make military service in theDepartment of Defense a model of equal opportunity for all regardless of race,color, sex, religion or national origin; [t]o provide equity in civilian employmentregardless of race, color, sex, religion, national origin, disability, age, or sexual
2orientation, and to provide an environment that is accessible to and usable byall.” The common categories are “race, color, sex, religion or national origin.”Civilian employees currently also enjoy protection in “disability, age, or sexualorientation.” The Human Goals Charter does not create enforceable rights.The EO Directive requires, among other things, that the Military Servicesestablish and support MEO programs; provide education and training in equalopportunity and human relations; provide environments that are free fromunlawful discrimination and sexual harassment; and ensure that all on-baseactivities, and to the extent possible, off-base activities, are open to all military personnel and their family members. The Directive does not currently addresssexual orientation. Sexual harassment is gender neutral and does not depend onthe same-sex or different-sex character, nor the sexual orientation, of the perpetrator and/or victim.The DOD also has an affirmative action program.
See DoD Instruction1350.3, Affirmative Action Planning and Assessment Process.
This Instructionimplements the Civil Rights Act of 1968 within the DoD. It requires the DoD tocollect certain statistical information. The Civil Rights Act does not currentlyinclude protection based on sexual orientation.The current legislation to repeal DADT does not include non-discrimination language.Analysis: The treatment of GLB Federal civilian employees is instructivein analyzing the impact of the repeal of DADT on the uniformed personnel of theDoD. Like their military counterparts, GLB Federal civilian employees have nostatutory protection against discrimination based on sexual orientation.
The closest they come is 5 U.S.C. § 2302(b)(10), which prohibits discrimination for or against any employee or applicant for employment on the basis of conduct that does notadversely affect the performance of the employee or applicant or the performance of others. The Office of Personnel Management and the Special Counsel regard this provision as covering sexual orientation discrimination, although some Special Counsel
3Executive Order 13087 issued by President Clinton on May 28, 1998 prohibitsdiscrimination based on sexual orientation within Executive Branch Federalemployment “to the extent permitted by law”
. Executive Order 13087 amendedExecutive Order 11478, which by its terms applies to “civilian employees andapplicants for employment”.
It expressly applies to the Military Services.
GLBemployees cannot bring claims of sexual orientation discrimination before third parties but must trust their leaders to act on such allegations as a matter of management oversight. The Executive Orders have not meant that GLBemployees must receive the same benefits as heterosexual employees. GLBemployees have recently started receiving some of those benefits, not because of the Executive Orders, but rather because of regulatory intepretations/changes bythe Office of Personnel Management. The point here is that (1) the absence of sexual orientation in an employment discrimination statute, such as Title VII of the Civil Rights Act of 1964, as amended, does not preclude the military fromadding sexual orientation to its MEO or its Affirmative Action Planning andAssessment Process; and (2) that adding sexual orientation to these directives andinstructions does not confer a right enforceable by law.Conclusion: Repeal of DADT does not require immediate statutorychanges nor immediate regulatory changes in the DoD MEO or AffirmativeAction Planning and Assessment Process. Existing sexual harassment policiesaddress both same-sex and different-sex sexual harassment.
in recent years have taken contrary positions. The Merit Systems Protection Board hasnever found sexual orientation discrimination based on § 2302(b)(10) in a case.
Sec. 2, Executive Order 13087.
Sec. 2, Executive Order 11478.
Sec. 6, Executive Order 11478.

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