On April 23, 2025, the Secretary of Defense issued a memorandum directing the heads of the military agencies to conduct a review on military and civilian EEO complaint processes in their agencies within 45 calendar days. The memorandum raises some issues concerning the civilian EEO complaints process at the relevant agencies.
The memorandum directs three crucial changes concerning civilian EEO complaints. First, the memorandum purports to direct that civilian EEO policies be modified to dismiss “[c]omplaints that are unsubstantiated by actionable, credible evidence,” which the memorandum defines as follows:
…credible evidence is defined as []evidence of attributable or corroborated information, in any form, disclosed to or obtained by a responsible official that—considering the original source, the nature of the information, and the totality of the circumstances—is sufficient to raise a question of fact that would cause a reasonable responsible official under similar circumstances to inquire further. To be credible, the information must be based on more than mere speculation and not clearly contradicted by known or material facts. To be attributable, the responsible official must be able to authenticate the evidence or information. To be actionable, the original source(s) of information must be reasonably valid or verifiable.
Second, the policy also directed that the military agencies were to consider giving favorable treatment (including “promotions, awards, reenlistment, reassignment, military or civilian schools and retirements”) to managers subject to complaints that the agency does not deem “substantiated” based on their investigation. Third, the memorandum directed military agencies to prepare to take “[a]dministrative and/or disciplinary actions against personnel who knowingly submit false complaints.”
It is unclear whether some of the actions proposed in the memorandum would be legally valid, under the current operative legal framework for federal sector civilian EEO complaints. EEO protections for civilian employees in the military agencies are statutory in nature (operating primarily under the coverage of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act, the Equal Pay Act and the Genetic Information Nondiscrimination Act (GINA)). Agencies’ federal sector EEO complaints processes are subject to the oversight of the Equal Employment Opportunity Commission (EEOC), and claims may also be ultimately taken into court under present statute. Further, the EEOC has promulged extensive regulations governing civilian federal sector EEO complaints, which bind the military agencies; as the EEOC presently lacks quorum, it cannot amend its regulations except in the case of “[p]urely ministerial changes to regulations that are compelled by statute, such as mandatory annual adjustment of civil penalties.” Under present EEOC regulations, agency complaint dismissals are subject to appellate review by the EEOC Office of Federal Operations (EEOC OFO), pursuant to 29 C.F.R. § 1614.401(a); agency dismissal decisions get no deference at the EEOC and are instead subject to de novo review by the EEOC on appeal. Notably, military officers’ discrimination complaints are processed under their own complaint process which operates within the military, which differs from civilian EEO law.
The memorandum’s proposed dismissal standard change would appear to set a far higher burden of proof and evidence than is required to avoid dismissal under preexisting EEOC precedent. Under longstanding EEOC precedent, agencies’ dismissal decisions on claims are to be based on “whether the complainant is allegedly aggrieved due to an unlawful employment practice, and a dismissal will be reversed where the agency bases that action on its view of the ultimate merits of the complaint allegations. […] The Commission emphasizes that explanations about why the Agency took a particular action are irrelevant to the procedural issue of whether Complainant stated a viable claim under the [relevant discrimination statute] and the 29 C.F.R. Part 1614 regulations.” See Cecille W. v. Dept. of Defense, EEOC Appeal No. 2024002895 (Sept. 16, 2024). Under EEOC regulations which cannot be presently amended due to lack of quorum, agencies are solely permitted to issue merits adjudications for claims which meet the minimal standard of stating a claim after conducting a full merits investigation (and possibly after litigation at the EEOC, if the complainant timely requests a hearing). Accordingly, dismissals of civilian EEO complaints on standards inconsistent with EEOC precedent are subject to reversal by EEOC OFO on appeal.
The proposal for discipline against EEO complainants creates a legally fraught situation for agencies. The EEOC has held, based on certain court precedent and longstanding EEOC policy guidance, that taking disciplinary action against an EEO complainant for allegedly false testimony in an EEO complaint constitutes illegal EEO retaliation (rendering any disciplinary action not only invalid, but also giving rise to an EEO reprisal claim for damages), and that the correct remedial measure for an agency to take in such circumstances is not to impose discipline, but instead to possibly seek sanctions in the EEO case. See Jazmine F. v. Dept. of Defense, EEOC Petition No. 0320170007 (July 5, 2023). Other retaliation statutes also provide independent protections for employees, for example for those employees who serve as witnesses in the EEO complaints of other employees. See 5 U.S.C. §§ 2302(b)(9)(B, C); Edwards v. Dept. of Labor, 2022 MSPB 9 (2022).
Finally, the idea of providing rewards to managers who are named in EEO complaints which the agency concludes are not substantiated raises several possible issues. First, as a practical matter, the higher a manager is in an agency’s organizational chart, the more likely they are to be named as one of the responding management officials in a given EEO case, even if they are just, for example, the 4th or 5th line supervisor. Indeed, under statute, the titular defendant in each EEO lawsuit against a federal agency in court is the secretary or equivalent agency head of the relevant agency. See, e.g., 42 U.S.C. § 2000e-16(c). Anecdotally, agencies only tend to find EEO violations in final agency decisions issued against themselves in a vanishingly small percentage of cases (for example, the Department of the Army in its FY 2023 NO FEAR Act report indicating issuing an adverse Final Agency Decision (FAD) against itself in, very roughly, 1% of cases in the 2018-2022 timeframe). Therefore, the new memorandum would seem to risk creating a progressively larger stream of money bonuses or other benefits to progressively higher levels of an agency’s management chain, just by dint of their presiding over agency units whose conditions appear to be giving rise to a volume of EEO complaints—standing contrary to public policy (as enacted by Congress in the EEO statutes) of incentivizing elimination of possibly discriminatory or harassing conditions giving rise to EEO complaints in the first place. It is unclear whether the enactment of this sort of a bonus policy could also prove detrimental to DoD and the military agencies in defending future civilian EEO complaint (for example, by calling into question the efficacy of the antiharassment complaints mechanism for purposes of Faragher/Ellerth affirmative defense analysis in harassment claims, or creating a chilling effect on EEO complaints that might give rise to reprisal claims).
If you are a civilian federal employee and wish to seek advice regarding a possible discrimination claim, consider contacting Gilbert Employment Law, to request an initial consultation.