On September 30, 2025, in conjunction with a meeting with senior military leadership, Defense Secretary Hegseth (signing as ‘Secretary of War’) issued a set of memoranda on various topics. These memoranda covered a variety of issues, including matters pertaining to civilian employees of the Department of Defense (DoD) and the military agencies. The proposed revisions, however, raise legal complications that merit attention.
The first set of changes pertains to the EEO complaints process (accompanied by changes affecting the military EO complaints process). Many of these changes follow up on proposals previously raised by Secretary Hegseth, which were previously discussed in this blog.
- The memoranda purported to set up a new procedure for EEO complaints to be dismissed within 30 days unless the EEO office deems the complaint to be evidentiarily substantiated. This change may be contrary to present EEOC regulations, if “complaint” this memorandum refers to any complaint at any stage of processing, including the initial phase of processing with the EEO Counselor. Specifically, the legal authority for dismissing complaints (29 C.F.R. § 1614.107) requires there to be a “complaint,” which in this context means a formal complaint of discrimination; EEO claims in the first 30 days are still in the “pre-complaint processing” stage under 29 C.F.R. § 1614.105, and so there would be no “complaint” to be dismissed at that point. Accordingly, if the 30-day period referenced in the memorandum refers to the first 30 days from initial contact with the EEO counselor (i.e. the “pre-complaint” or “informal complaint” stage under 29 C.F.R. §1614.105), as opposed to referring to the “formal complaint” stage (i.e. the stage after filing of a formal EEO complaint under 29 C.F.R. § 1614.106), dismissal would be inconsistent with present EEOC regulations. Additionally, 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).
- The memoranda also called for agencies to consider discipline against EEO complainants “who knowingly submit false complaints and repeatedly submit frivolous complaints.” However, this initiative may run contrary to MSPB precedent. “Participating in EEO activity enjoys very broad protection, to the point that an employee may not be disciplined even for bringing false or malicious claims of discrimination. However, activity protected under Title VII does not include activity that is unlawful.” Ramirez v. Dept. of Veterans Affairs, MSPB Docket No. DE-0752-14-0482-I-1 (Dec. 8, 2023) at ¶ 18. Accordingly, while an employee may be disciplined for knowingly false claims in an EEO complaint, it would not normally be grounds for discipline that a complaint was somehow ‘frivolous,’ as participation in the EEO complaints process is deemed protected even if the charges are later found unmeritorious. See Parker v. Dept. of Veterans Affairs, 122 M.S.P.R. 353 (2015); EEOC Enforcement Guidance on Retaliation and Related Issues, § II.A.1. Further, present EEOC regulations already permit dismissal of EEO complaints for “Where the agency, strictly applying the criteria set forth in Commission decisions, finds that the complaint is part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination.” However, the EEOC has long set strict limits on such ‘abuse of process’ dismissals, requiring “Evidence of multiple complaint filings and […] Allegations that are similar or identical, lack specificity or involve matters previously resolved; or Evidence of circumventing other administrative processes, retaliating against the agency’s in-house administrative processes or overburdening the EEO complaint system.” See 29 C.F.R. § 1614.107(a)(9). In its Final Rule promulgating this provision, the EEOC emphasized that “dismissing complaints for abuse of process should be done only on rare occasions because of the strong policy in favor of preserving complainants’ EEO rights whenever possible” and “requires careful deliberation and application of strict criteria.” See 64 Fed.Reg. 37644, 376474 (July 12, 1999).
- The memoranda further called for giving priority fast-tracking to EEO complaints against high-ranking managers (including possible use of artificial intelligence tools to expedite processing). The EEOC’s present federal sector complaint adjudication policies (which govern civilian EEO complaints at DoD) contemplate human decisionmakers deciding cases, not decisions by AI software. Also, the overall structure of the federal sector EEO complaints process provides for a single common complaints processing system for all complaints, irrespective of what grade, rank or position the alleged discriminating official holds, although it would appear that fast-tracking for some complaints as the agency level would not be prohibited so long as it did not result in other complaints exceeding the complaint processing deadlines under EEOC regulations. The memorandum however cannot change the processing schedule for complaints before outside tribunals such as the EEOC or a court, as the tribunal controls the timeframes for case pending before it.
- The memoranda eliminated the prior DoD policy that eliminated the practice of withholding or delaying promotions based on the existence of EEO complaints against the subject employee, unless there was “a substantive finding of misconduct or […] objective and credible evidence” of a violation.
- The new memoranda also call for reorganization to centralize DoD’s EEO functions, noting that the proposal may later be extended to the military departments.
- The memoranda encouraged liberal use of dismissals under 29 C.F.R. § 1614.107(a)(7) for complainants failing to provide responses within 15 calendar days. This proposal is contrary to EEOC regulations and precedent, which states that such dismissals are solely proper in cases where there is a clear record of delay or contumacious conduct by that complainant, and would certainly not apply to the first instance of a given request to a complainant. Compare 29 C.F.R. § 1614.107(a)(7) to MD-110, Ch. 5, § IV.B.2 (“The Commission also has held that the regulation is applicable only in cases where there is a clear record of delay or contumacious conduct by the complainant.”); see, e.g., Mignone v. Department of the Treasury, EEOC Appeal No. 01960036 (November 6, 1996).
- The memoranda also encouraged dismissal of EEO complaints which were waived by the terms of waiver agreements under the deferred resignation program.
- The memoranda called for eliminating money sanctions in EEO cases.
The modifications concerning money sanctions and concerning negative actions against accused discriminating officials track two memoranda issued by EEOC Chair Lucas in May 2025. The Chair’s memos could not directly change EEOC policy, as the EEOC at the time lacked quorum. As such, the EEOC could not 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,” and that authority was delegated to the EEOC Legal Counsel (or acting legal counsel), not the Chair. Formal implementation by the EEOC of the sanctions policy change would appear to require a new precedential decision from the EEOC Office of Federal Operations overturning the prior precedent, as the previous policy was enacted in the form of a precedential appellate decision (as previously discussed in this blog) that would have to be modified by a new decision, The direction by Secretary Hegseth in the new memoranda would therefore appear to impact only money sanctions ordered by DoD EEO office directors in final agency decisions. In contrast, the policy on imposing penalties on accused discriminating officials prior to full adjudication of the EEO complaint is DoD-specific and not generally found in other agencies.
Another portion of the memoranda called for a review of, and potential narrowing of, definitions of “hazing, bullying, and harassment” in DoD personnel policies, possibly narrowing the scope of what claims could be raised in non-EEO antiharassment and disciplinary contexts. The impact of this review would be limited in the context of EEO or whistleblower reprisal harassment claims, as the definitions of actionable harassment under those statutes are defined by the EEOC, the MSPB, and the courts.
Another memorandum called for renewed emphasis on removal of employes with performance issues, while at the same time also calling for enhancement of awards for those deemed high performers.
An additional set of changes focused on Inspector General (IG) complaints at DoD.
- The IG was directed to make initial credibility determinations (and possible dismissal determinations) within 7 days of filing, including using AI tools to expedite decision making.
- The memorandum defined as “non-credible” those IC complaints “filed more than a year after the alleged event, unless new compelling evidence is presented” and “repeat submissions with no new facts, which should be labeled ‘duplicate,’ linked to the original case.”
- Command-directed investigations are to be concluded within 30 calendar days of initiation.
- IGs are required to provide regular status updates on IG complaints to the complainant, the subject employee, and the relevant commander every 14 days while the investigation is ongoing.
- Similar to EEO complaints memorandum, preexisting policies restricting promotions, assignments, training, and other personnel actions for subject employees have been cancelled in most cases.
- The memorandum also calls for tracking, and possibly disciplining, “complainants who submit multiple complaints without credible evidence, that are frivolous, or that knowingly include false information” in IG complaints. The memorandum however notes the existence of whistleblower protection statutes, which are especially pertinent as retaliation against whistleblowers, and retaliation against individuals participating in IG proceedings or providing information to the IG’s office, are both protected from reprisal (under 5 U.S.C. §§ 2302(b)(8), 2302(b)(9)(C)). In particular, any disclosure of information to the IG is protected, so long as the disclosure occurs lawfully, irrespective of the substance of the disclosure. This indicates that even provision an allegedly frivolous complaint would be protected under 5 U.S.C. § 2302(b)(9)(C). See, e.g., Fisher v. Dept. of the Interior, 2023 MSPB 11 (2023).
Finally, a further memorandum modified grooming standards for “[a]ll personnel,” including a prohibition on beards or other facial hair. The policy recognized requirements for providing religious accommodations and accommodations for disability. Religious accommodations were to be considered on a case-by-case basis, with “Approvals will be limited to non-deployable roles with low risk of chemical attack or firefighting requirements.” Disability accommodations are limited to one year, and “Permanent conditions will result in evaluation for administrative separation.” The memo expressly recognized that this policy would create a disability reasonable accommodation issue for sufferers of pseudofolliculitis barbae. To the extent that this policy applies to civilian employees, it would violate present EEOC precedent under the Rehabilitation Act, as discussed in this blog.
If you are a DoD civilian employee and wish to discuss the impacts of the new memoranda on your rights, please consider contacting Gilbert Employment Law to request an initial consultation