B-198317.OM, JUL 2, 1980

B-198317.OM, JUL 2, 1980

SUBJECT: AUTHORITY FOR EQUAL OPPORTUNITY PROGRAMS IN THE ARMED SERVICES - B-198317 - O.M.:

DIRECTOR, FPCD - H. L. KRIEGER:

AS PART OF YOUR REVIEW OF THE STATUS OF EQUAL OPPORTUNITY FOR PERSONNEL IN THE ARMED SERVICES YOU RAISED QUESTIONS IN YOUR MARCH 31, 1980 MEMORANDUM CONCERNING THE BACKGROUND AND LEGISLATIVE HISTORY OF THE DEPARTMENT OF DEFENSE'S EQUAL OPPORTUNITY PROGRAMS. YOUR QUESTIONS AND OUR ANSWERS FOLLOW.

QUESTION 1: WHAT WAS THE CONGRESSIONAL INTENT REGARDING THE APPLICABILITY OF THE CIVIL RIGHTS ACT OF 1964 AND THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972 TO MILITARY PERSONNEL?

ANSWER: TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, PROHIBITS RACIAL AND OTHER TYPES OF DISCRIMINATION IN EMPLOYMENT IN INDUSTRIES COVERED BY THE ACT. THE ACT WAS SUBSTANTIALLY AMENDED AND BROADENED BY THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972. SECTION 11 OF THE 1972 ACT ADDED SECTION 717 TO TITLE VII (42 U.S.C. 2000E-16). SECTION 717 MAKES CLEAR THE OBLIGATION OF THE FEDERAL GOVERNMENT TO MAKE ALL PERSONNEL ACTIONS "AFFECTING EMPLOYEES OR APPLICANTS FOR EMPLOYMENT" FREE FROM DISCRIMINATION BASED ON RACE, COLOR, SEX, RELIGION OR NATIONAL ORIGIN.

WE HAVE REVIEWED THE LEGISLATIVE HISTORY OF BOTH OF THE ABOVE ACTS AND HAVE CONCLUDED THAT CONGRESS DID NOT INTEND MEMBERS OF THE MILITARY TO BE COVERED BY THEM. THIS CONCLUSION IS BUTTRESSED BY THE DECISION IN JOHNSON V. HOFFMAN, 424 F. SUPP. 490 (E.D. NO. 1977), AFF'D 572 F.2D 1219 (8THE CIR. 1978), CERT. DENIED 439 U.S. 986 (1978). THERE THE COURT HELD THAT CONGRESS COULD NOT HAVE HAD UNIFORMED MEMBERS OF THE MILITARY IN MIND WHEN CONSIDERING THE 1972 AMENDMENTS TO THE CIVIL RIGHTS ACT OF 1964.

THERE IS NOTHING IN THE LANGUAGE OR THE LEGISLATIVE HISTORY OF THE ACTS WHICH SPECIFICALLY REFERS TO MILITARY PERSONNEL. IT CAN BE IMPLIED FROM THE LANGUAGE AND THE HISTORY OF THE ACTS, HOWEVER, THAT MILITARY PERSONNEL WERE NOT TO BE INCLUDED. FOR INSTANCE, BOTH ACTS REFER TO EQUAL EMPLOYMENT OPPORTUNITIES FOR FEDERAL "EMPLOYEES". SEE SECTION 701(B) OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000EB) (1964) AND SECTION 717 OF THAT ACT AS ADDED BY THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, 42 U.S.C. 2000E-16 (1976). GENERALLY, IN THE AREA OF FEDERAL PERSONNEL LAW THE TERM "EMPLOYEES" REFERS TO CIVILIAN EMPLOYEES (UNLESS SPECIFICALLY DEFINED OTHERWISE) WHEREAS MILITARY AND NAVAL PERSONNEL ARE REFERRED TO AS "MEMBERS".

MOREOVER, IN JOHNSON V. ALEXANDER, 572 F.2D 1219 (8TH CIR. 1978), THE COURT STATED THAT IF CONGRESS HAD INTENDED FOR THE STATUTE (EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972) TO APPLY TO THE UNIFORMED PERSONNEL OF THE VARIOUS ARMED SERVICES IT WOULD HAVE SAID SO IN UNMISTAKABLE TERMS. IN REACHING THIS CONCLUSION THE COURT POINTED TO THE FACT THAT WHILE TITLE VII IS MADE APPLICABLE BY 42 U.S.C. 2000E-16(B), TO "ALL PERSONNEL ACTIONS AFFECTING EMPLOYEES OR APPLICANTS FOR EMPLOYMENT IN MILITARY DEPARTMENTS AS DEFINED IN 5 U.S.C. 102" THE TERM DEPARTMENTS AS DEFINED IN 5 U.S.C. 102 IS NOT INTERCHANGEABLE WITH THE TERM "ARMED FORCES" AS DEFINED IN GENERAL MILITARY LAW (10 U.S.C. 101(4)). ALONG THIS SAME LINE, THE COURT IN JOHNSON V. HOFFMAN, ABOVE, POINTED OUT THAT THROUGHOUT THE LEGISLATIVE HISTORY TO THE 1972 AMENDMENTS VARIOUS REFERENCES ARE MADE TO THE FACT THAT THE FEDERAL GOVERNMENT EMPLOYS 2.6 MILLION PERSONS AND THAT AT THE TIME THE AMENDMENTS WERE BEING CONSIDERED THERE WERE APPROXIMATELY 2.2 TO 2.6 MILLION MEMBERS OF THE ARMED FORCES. THE COURT THEN REASONED THAT IF CONGRESS HAD INTENDED TO INCLUDE MILITARY MEMBERS A MUCH HIGHER FIGURE WOULD HAVE BEEN USED WHEN CONGRESS WAS REFERRING TO THE NUMBER OF FEDERAL EMPLOYEES.

WE AGREE WITH THE ABOVE CASES AND CONCLUDE THAT TITLE VII IS NOT APPLICABLE TO MEMBERS OF THE ARMED FORCES.

THE 5TH AMENDMENT TO THE UNITED STATES CONSTITUTION PROVIDES IN PERTINENT PART THAT "NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW." ALTHOUGH THIS AMENDMENT DOES NOT CONTAIN AN EXPRESS "EQUAL PROTECTION" CLAUSE, IT HAS BEEN DETERMINED THAT THE CONCEPT OF DUE PROCESS OF LAW FORBIDS THE FEDERAL GOVERNMENT FROM DISCRIMINATING AGAINST ANY PERSON ON SUCH INVIDIOUS AND IRRELEVANT GROUNDS AS RACE, COLOR, RELIGION OR NATIONAL ORIGIN. THE EQUAL PROTECTION COMPONENT OF THE DUE PROCESS CLAUSE THUS CONFERS A FEDERAL CONSTITUTIONAL RIGHT TO BE FREE FROM ILLEGAL DISCRIMINATION. SEE: WEINBERGER V. WEINBERGER, 420 U.S. 636 (1975); BOLLING V. SHARPE, 347 U.S. 497, 499 (1954); AND JOHNSON V. ALEXANDER, 572 F.2D 1219 (8TH CIR. 1978).

QUESTION 2: WHAT IS THE LEGAL AUTHORITY FOR EQUAL OPPORTUNITY PROGRAMS IN THE UNIFORMED SERVICES?

ANSWER: PURSUANT TO 10 U.S.C. 133(B) THE SECRETARY OF DEFENSE IS THE PRINCIPAL ASSISTANT TO THE PRESIDENT (WHO, UNDER THE CONSTITUTION, IS COMMANDER-IN-CHIEF OF THE ARMED FORCES) IN ALL MATTERS RELATING TO THE DEPARTMENT OF DEFENSE. MOREOVER, SUBJECT TO THE DIRECTION OF THE PRESIDENT AND TO APPLICABLE STATUTES, THE SECRETARY OF DEFENSE HAS AUTHORITY, DIRECTION AND CONTROL OVER THE DEPARTMENT OF DEFENSE. THE SECRETARY OF DEFENSE ALSO HAS THE AUTHORITY TO EXERCISE ANY OF HIS POWERS THROUGH OR WITH THE AID OF, SUCH PERSONS IN, OR ORGANIZATIONS OF, THE DEPARTMENT OF DEFENSE AS HE MAY DESIGNATE.

AS PREVIOUSLY STATED, THE DUE PROCESS CLAUSE OF THE 5TH AMENDMENT AND VARIOUS EXECUTIVE ORDERS PROHIBIT DISCRIMINATION BY THE FEDERAL GOVERNMENT. THUS, IN ORDER TO CARRY OUT AND ASSURE COMPLIANCE WITH THIS POLICY THE SECRETARY OF DEFENSE, UNDER THE AUTHORITY OF 10 U.S.C. SEC. 133(B), HAS ESTABLISHED A DEPARTMENT OF DEFENSE EQUAL OPPORTUNITY PROGRAM. SEE 32 C.F.R. 191 ET SEQ. (1979). THIS PROGRAM APPLIES TO THE MILITARY DEPARTMENTS OF THE DEPARTMENT OF DEFENSE AND TO ALL MILITARY AND NAVAL PERSONNEL WITHIN THOSE DEPARTMENTS. THE SECRETARIES OF THE INDIVIDUAL ARMED SERVICES IMPLEMENT SUCH PROGRAMS PURSUANT TO THE SECRETARY OF DEFENSE'S DIRECTIVES AND THEIR AUTHORITY UNDER 10 U.S.C. SECS. 3012, 5031 AND 8012 (1976). SEE FOR EXAMPLE ARMY REGULATION 600-21 (SEPTEMBER 1977) ESTABLISHING AN EQUAL OPPORTUNITY PROGRAM IN THE U. S. ARMY.

QUESTION 3: IF MEMBERS OF THE MILITARY ARE NEITHER COVERED BY THE CIVIL RIGHTS ACT OF 1964 NOR THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, WHAT RIGHTS, IF ANY, DO MILITARY MEMBERS HAVE TO EQUAL OPPORTUNITY AND TREATMENT?

ANSWER: IT HAS LONG BEEN RECOGNIZED THAT THE MILITARY IS, BY NECESSITY, A SPECIALIZED SOCIETY SEPARATE FROM CIVILIAN SOCIETY. THE DIFFERENCES BETWEEN THE MILITARY AND CIVILIAN COMMUNITIES RESULT FROM THE FACT THAT IT IS THE PRIMARY BUSINESS OF ARMIES AND NAVIES TO FIGHT OR BE READY TO FIGHT WARS SHOULD THE OCCASION ARISE. SEE ORLOFF V. WILLOUGHBY, 345 U.S. 83 (1953). FOR THE REASONS WHICH DIFFERENTIATE MILITARY SOCIETY FROM CIVILIAN SOCIETY, THE SUPREME COURT HAS PERMITTED CONGRESS TO LEGISLATE BOTH WITH GREATER BREADTH AND WITH GREATER FLEXIBILITY WHEN PRESCRIBING THE RULES BY WHICH THE FORMER SHALL BE GOVERNED THAN IT HAS WHEN PRESCRIBING RULES FOR THE LATTER. PARKER, WARDEN, ET AL V. LEVY, 417 U.S. 733 (1974).

HOWEVER, EVEN THOUGH CONGRESS IS GRANTED MUCH GREATER FLEXIBILITY WITH REGARD TO MILITARY PERSONNEL, THE COURT HAS RECOGNIZED THAT MEMBERS OF THE MILITARY ARE NOT EXCLUDED FROM THE PROTECTIONS GRANTED BY THE CONSTITUTION. SEE PARKER V. LEVY, 427 U.S. 733 (1974) (MILITARY MEMBERS ARE NOT EXCLUDED FROM THE PROTECTION GRANTED BY THE 1ST AMENDMENT). THEREFORE, SINCE MILITARY MEMBERS ARE ENTITLED TO THE PROTECTION GRANTED BY THE CONSTITUTION THEY ARE ENTITLED TO THE RIGHT OF EQUAL OPPORTUNITY AND TREATMENT BY THE 5TH AMENDMENT. SEE THE PREVIOUS DISCUSSION ON THE 5TH AMENDMENT AND COURT CASES CITED IN THE ANSWER TO THE NEXT QUESTION.

QUESTION 4: BY WHAT MEANS CAN A MEMBER OF THE MILITARY SERVICES SEEK REDRESS OF HIS/HER DISCRIMINATION COMPLAINTS?

ANSWER: MILITARY MEMBERS ARE ENTITLED TO USE THE GRIEVANCE PROCEDURES ESTABLISHED BY THE INDIVIDUAL BRANCHES OF THE ARMED SERVICES. SEE FOR EXAMPLE ARMY REGULATIONS 600-21 AND 20-1, PARAS 3-1 THROUGH 3-7 WHICH PROVIDES FOR USE OF THE CHAIN OF COMMAND AND THE INSPECTOR GENERAL TO RESOLVE SUCH CASES. MOREOVER, THE MILITARY CORRECTION BOARDS ESTABLISHED UNDER 10 U.S.C. SEC. 1552 (1976), WOULD APPEAR TO BE AVAILABLE TO PROVIDE RELIEF WHERE ERRORS OR INJUSTICES HAVE OCCURRED AS A RESULT OF DISCRIMINATION.

IN ADDITION TO THE ABOVE PROCEDURES MEMBERS OF THE MILITARY MAY ALSO FILE SUIT IN A FEDERAL DISTRICT COURT CLAIMING THAT THEIR CONSTITUTIONAL RIGHTS HAVE BEEN ABRIDGED. THE SUPREME COURT HAS RECENTLY STATED IN A CASE INVOLVING A CIVILIAN CONGRESSIONAL EMPLOYEE WHO WAS NOT COVERED BY TITLE VII OF THE CIVIL RIGHTS ACT THAT A CAUSE OF ACTION MAY BE IMPLIED DIRECTLY UNDER THE EQUAL PROTECTION COMPONENT OF THE DUE PROCESS CLAUSE OF THE 5TH AMENDMENT IN FAVOR OF THOSE WHO SEEK TO ENFORCE THIS CONSTITUTIONAL RIGHT. SEE DAVIS V. PASSMAN, U.S. , SUPREME COURT NO. 78-5072 (JUNE 5, 1979). IT WAS HELD THAT EVEN THOUGH TITLE VII DID NOT APPLY, AND THEREFORE, THE PLAINTIFF WOULD NOT BE ENTITLED TO THE REMEDIES PROVIDED BY TITLE VII, THIS DID NOT MEAN THAT CONGRESS MEANT TO FORECLOSE ALTERNATIVE REMEDIES AVAILABLE TO THOSE NOT COVERED BY THE STATUTE AND THEREFORE THEY ARE ENTITLED TO WHATEVER REMEDIES THEY MIGHT OTHERWISE POSSESS. SIMILAR REASONING WOULD APPEAR APPLICABLE TO MILITARY MEMBERS.

FOR EXAMPLES OF CASES WHERE THE COURTS HAVE GRANTED JURISDICTION AND HAVE RENDERED DECISIONS IN CASES INVOLVING POSSIBLE 5TH AMENDMENT VIOLATIONS BY THE MILITARY SEE SCHLESINGER V. BALLARD, 419 U.S. 498 (1975) (REVERSE DISCRIMINATION); FRONTIERO V. RICHARDSON, 411 U.S. 677 (1973) (SEX DISCRIMINATION); AND JOHNSON V. HOFFMAN, 424 F. SUPP. 490 (E.D. MO. 1977).

THEREFORE, THE FEDERAL COURTS, THE CORRECTION BOARDS, AND THE INTERNAL GRIEVANCE PROCEDURES OF THE DEPARTMENT OF DEFENSE ARE AVAILABLE TO MILITARY MEMBERS WHO SEEK REDRESS OF THEIR DISCRIMINATION COMPLAINTS.

QUESTION 5: HOW DOES THE REVOKING OF EXECUTIVE ORDER 9,981 BY EXECUTIVE ORDER 11,051 AFFECT THE POLICY OF THE PRESIDENT THAT THERE BE EQUAL OPPORTUNITY IN THE MILITARY?

ANSWER: EXECUTIVE ORDER NO. 9,981 (1948) DECLARED IT TO BE THE POLICY OF THE PRESIDENT THAT THERE SHALL BE EQUALITY OF TREATMENT AND OPPORTUNITY FOR ALL PERSONS IN THE ARMED SERVICES WITHOUT REGARD TO RACE, COLOR, RELIGION OR NATIONAL ORIGIN. IN ADDITION, THE EXECUTIVE ORDER CREATED AN ADVISORY COMMITTEE KNOWN AS THE PRESIDENT'S COMMITTEE ON EQUALITY OF TREATMENT AND OPPORTUNITY IN THE ARMED SERVICES. THE PURPOSE OF THIS COMMITTEE WAS TO DETERMINE IN WHAT RESPECT THE RULES AND PROCEDURES OF THE ARMED SERVICES NEEDED TO BE ALTERED OR IMPROVED IN ORDER TO CREATE EQUALITY OF TREATMENT AND OPPORTUNITY FOR ALL MEMBERS OF THE MILITARY.

THIS ORDER WAS LATER REVOKED BY EXECUTIVE ORDER NO. 11,051 (1962). HOWEVER, PRIOR TO THE REVOCATION OF EXECUTIVE ORDER NO. 9,981, PRESIDENT KENNEDY ESTABLISHED THE COMMITTEE ON EQUAL OPPORTUNITY IN THE ARMED FORCES WHICH WAS TO BE SIMILAR IN SCOPE AND PURPOSE TO THAT OF THE ONE ESTABLISHED IN 1948. SEE PUBLIC PAPERS OF THE PRESIDENTS, LETTER TO CHAIRMAN OF THE COMMITTEE ON EQUAL OPPORTUNITY IN THE ARMED FORCES, JUNE 24, 1962. THUS, IN REVOKING EXECUTIVE ORDER NO. 9,981, IT DOES NOT APPEAR THAT PRESIDENT KENNEDY INTENDED TO ADVERSELY AFFECT THE POLICY OF EQUAL OPPORTUNITY IN THE MILITARY. RATHER, BY ESTABLISHING A COMMITTEE SIMILAR TO THE ONE PROVIDED FOR IN THE 1948 EXECUTIVE ORDER IT APPEARS THAT HE INTENDED TO CONTINUE THE GENERAL POLICY THUS IN EFFECT.

MOREOVER, AS EVIDENCED BY THE MEMORANDUM FROM SECRETARY OF DEFENSE CLIFFORD TO PRESIDENT JOHNSON COMMEMORATING THE 20TH ANNIVERSARY OF EXECUTIVE ORDER NO. 9,981, IT APPEARS THAT THIS POLICY WAS ALSO IMPLEMENTED IN SUBSEQUENT ADMINISTRATIONS. SEE 4 WEEKLY COMPILATIONS OF PRESIDENTIAL DOCUMENTS 1154-1155 (JULY 1968). THEREFORE, IT IS OUR CONCLUSION THAT THE REVOCATION OF EXECUTIVE ORDER NO. 9,981, DID NOT AFFECT THE POLICY OF EQUAL OPPORTUNITY IN THE MILITARY WHICH, AS IS NOTED ABOVE, IS CURRENTLY PRESCRIBED IN DEPARTMENT OF DEFENSE AND SERVICE REGULATIONS.