Legal Analysis of E.O. 13087 to Prohibit Discrimination Based on Sexual Orientation in Federal Employment

Legal Analysis of E.O. 13087 to Prohibit Discrimination Based on Sexual Orientation in Federal Employment

98-691 A
CRS Report for Congress
Received through the CRS Web
Legal Analysis of E.O. 13087 to Prohibit
Discrimination Based on Sexual Orientation in
Federal Employment
August 14, 1998
(name redacted)
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Abstract
E.O. 13087, issued by President Clinton on May 28, 1998, amends a nearly 30-year
executive order, E.O. 11478, to prohibit sexual orientation discrimination in most federal
civilian employment along with other forms of bias covered by the earlier order.

Legal Analysis of E.O. 13087 to Prohibit Discrimination
Based on Sexual Orientation in Federal Employment
Summary
E.O. 13087 amends a nearly 30 year-old executive order, E.O. 11478, to prohibit
sexual orientation discrimination in most federal civilian employment along with the
other forms of bias covered by the earlier order. The nondiscrimination and
“affirmative program of equal employment opportunity” requirement of the executive
order extends to “every aspect of personnel policy and practice in employment,
development, advancement, and treatment of civilian employees of the federal
government.” It applies to civilian employment by the executive branch, including
the military departments, and sundry other agencies but does not cover the uniformed
military. In addition, although it purports to apply to legislative and judicial branch
entities “having positions in the competitive service,” relatively few such positions
exist outside the executive branch, and E.O. 11478 has been judicially held not to
apply to noncompetitive and excepted service personnel. This report will be updated
as events warrant.

Legal Analysis of E.O. 13087 to Prohibit
Discrimination Based on Sexual Orientation in
Federal Employment
On May 28, 1998, President Clinton issued an amendment to E.O. 11478 which
states a basic policy of equal employment opportunity in federal executive branch
departments and agencies. The original order, as earlier amended, prohibits
discrimination because of “race, color, religion, sex, national origin, handicap, and
age” in covered employment and requires each executive department and agency to
promote equal opportunity through a “continuing affirmative program.” The scope
of the equal opportunity mandate in E.O. 11478 encompasses “every aspect of
personnel policy and practice in employment, development, advancement, and
treatment of civilian employees of the federal government.” The Clinton order, E.O.
13087, adds “sexual orientation” after “age” as a protected category in Section 1 of
the underlying document along with qualifying language, in effect, authorizing the
expansion of coverage only “to the extent permitted by law.”
The nature of the nondiscrimination and other obligations imposed on federal
departments and agencies by E.O. 11478 is spelled out in some greater detail in
Section 2. Thus, each agency head must establish and maintain an “affirmative
program of equal employment opportunity” for all civilian employees and applicants
emphasizing active outreach and recruitment efforts; employee development and
training designed to fully utilize and “enhance” employee skills and advancement
opportunities to “their highest potential;” training for managers and supervisors to
promote “understanding and implementation” of the policy; and a system for
oversight and periodic evaluation of program effectiveness. Beyond these more or
less inward-looking aspects of the program, federal managers are also directed to
“assure participation at the local level with other employers, schools, and public or
private groups in cooperative efforts to improve community conditions which affect
employability . . .” The Equal Employment Opportunity Commission has overall
responsibility for implementing the executive order program through the issuance of
rules and regulations which are binding on federal departments and agencies.1
When Title VII of the Civil Rights Act of 1964 was enacted, federal employees
were not protected since the federal government was specifically excluded from the
definition of an “employer” covered by the Act. Section 701 did, however, provide
1 Section 4 of E.O. 11478 directs the EEOC to “carry out” the order through the
issuance, “after consultation with all affected departments and agencies,” of “such rules,
regulations, orders, and instructions . . . as it deems necessary and appropriate” and the head
of each employing agency is required by § 5 to furnish the Commission with reports and
information as requested and to “comply with rules, regulations, orders, and instructions”
issued by it.

that federal sector employment decisions were to be free from discrimination. The
President was authorized to issue executive orders enforcing this policy. “Provided
further, That it shall be the policy of the United States to insure equal employment
opportunities for federal employees without discrimination because of race, color,
religion, sex or national origin and the President shall utilize his existing authority
to effectuate this policy.”2 To carry out this mandate, President Nixon issued E.O.
11478 in 1969, replacing portions of an earlier Johnson Administration directive on
the subject.3 Pursuant to the order, the former Civil Service Commission established
comprehensive administrative procedures for the investigation and resolution of
discrimination complaints by federal employees. However, the courts from an early
date denied a right to judicial review of discrimination claims brought pursuant to the
executive order.4
The lack of a judicial remedy for federal employees was rectified in 1972 when
Congress extended Title VII coverage to the federal workplace and provided for de
novo review in federal court of federal employee discrimination claims following
completion of the administrative process. Explicit congressional ratification of the
E.O. 11478, as then written, was included in § 717(c) of the 1972 amendments which
authorized private civil actions for federal employees complaining of “discrimination
based on race, color, religion, sex, or national origin.” In addition, the amendments
state:
Nothing contained in this Act shall relieve any Government agency or
official of its or his primary responsibility to assure non-discrimination in
employment as required by the Constitution and statutes or of its responsibilities
under Executive Order 11478 relating to equal employment opportunity in the
Federal Government.5
The Civil Service Commission's responsibility for enforcing Title VII and the
Executive Order was transferred to the EEOC pursuant to Reorganization Plan No.
1 of 1978 and the Civil Service Reform Act of 1978. The EEOC carried forward the
Commission's regulatory enforcement scheme, which was incorporated into the
EEOC's overlapping statutory jurisdiction.
The EEOC regulations elaborate upon the responsibility of federal departments
and agencies for maintaining an “affirmative program” of equal employment
opportunity as required by § 717 and the Executive Order. Aside from procedures
for processing complaints of discrimination, those rules focus on two major aspects
of a federal employer's compliance with nondiscrimination requirements. First, they
make clear that the equal opportunity mandate extends to all of a department or
agency's “personnel policies, practices, and working conditions”--including job
advertising, recruitment, training activities, promotion, discipline and discharge, etc.
Secondly, the regulations emphasize the need for measures to inform and educate
other employees, supervisors and managers in particular, concerning their role in
2 P.L. 88-352, § 701(b), 78 Stat.241, 252 (1964).
3 E.O. 11246, 30 Fed. Reg. 12319 (1965).
4 See e.g. Gnotta v. United States, 451 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S.
934 (1970); Brown v. G.S.A., 425 U.S. 820 (1976).
5 42 U.S.C. 2000e-16(e).

program implementation. Thus, the governmental employer is to “enlist th[e]
cooperation” of the agency's general workforce and labor organizations and must take
“appropriate disciplinary action” against discriminating employees. Similarly,
managers and supervisors are to be provided “orientation, training, and advice” on
the program with their participation being a factor in the evaluation of their job
performance.
Both Executive Order 11478, and the EEOC regulations described above, make
plain that the mandated “affirmative program of equal employment opportunity” is
to encompass “every aspect of personnel policy and practice,” including “recruitment
activities,” and that systems are to be established for “periodically evaluating the
effectiveness of the agency's overall equal employment opportunity effort.”6 The
scope of this legal obligation, and specific initiatives adopted by federal agencies to
implement it, have received scant judicial attention, perhaps because the order was
so soon supplanted by statutory amendment to Title VII. A corollary legal
requirement was incorporated into § 717 of the 1972 Title VII amendments, which
requires each federal department and agency to submit for annual EEOC review “an
affirmative program of equal employment opportunity” for all employees or
applicants for employment.7 The statute, however, has since 1978 been
administered jointly with a provision of the Civil Service Reform Act, which
authorized a federal “minority recruitment program” designed to eliminate
“underrepresentation” of racial and ethnic minorities, and women, in specific job
categories.8 That program has no application to sexual orientation -- just as it does
not extend to older workers and religious minorities who are also protected by E.O.
11478.
On account of this statutory history, minority and female recruiting practices
of federal agencies provide no direct guidance to interpreting E.O. 11478 as most
recently amended. E.O. 13087 does not explicitly mandate affirmative recruitment
or other preference in federal employment based on sexual orientation. But neither
does it or other legal authority preclude federal employing departments and agencies
from incorporating statistically--based measures into an overall “affirmative program
of equal employment opportunity.” Determination of administrative policy in this
regard would appear to be within the discretion of individual departments and
agencies under § 2 of E.O. 11478. In addition, under §§ 4 and 5 of E.O. 11478, as
amended, EEOC would arguably have the authority, but not a legal duty, to require
recordkeeping by agencies of workforce composition based on sexual orientation.9
6 29 C.F.R. §1614.102(a)(11).
7 42 U.S.C. § 2000e-16(b)(1).
8 The EEOC and Office of Personnel Management have issued rules to guide
monitoring and compliance of minority recruitment programs adopted by individual federal
agencies, including the requirement of “annual specific determinations of
underrepresentation for each group . . . accompanied by quantifiable indices by which
progress towards eliminating underrepresentation can be measured.” 5 C.F.R. §
720.205(b)(1998).
9 EEOC regulations issued pursuant to E.O. 11478 and the 1972 Title VII amendments
require covered departments and agencies “to collect and maintain accurate employment
information on the race, national origin, sex and handicap(s) of its employees” by means of
“voluntary self-identification” and to report on same to the Commission “in such form and
(continued...)

Note, however, that neither affirmative recruitment nor data collection appear to be
required by agency practice with respect other classes protected by E.O. 11478--older
workers and religious minorities, for example--leaving the prospects for future
agency action on sexual orientation largely conjectural.
The effect of the Clinton Administration order on federal health insurance,
family leave, and other employment benefits for federal employees that include
marital status distinctions would probably be marginal. Definitional aspects of
family relationship, i.e. husband, wife, spouse etc., required for participation in most
such programs are set by statute.10 Thus, any claim of sexual orientation
discrimination resulting from the denial of benefits to any person not the spouse or
child of an employee--or an agency's voluntary adoption of domestic partnership
policies-- would for many federal purposes be contrary to law and outside the scope
of E.O. 13087. But in light of the U.S. Supreme Court ruling last term in Oncale v.
Sundowner Offshore Services Inc.11-- finding that Title VII prohibits same-sex
harassment-- the new order could require agencies to take actions to prevent and
remedy harassment of employees based on their sexual orientation. Such anti-
harassment policies could include agency-sponsored training programs to foster
awareness and appreciation of diversity in matters of sexual orientation. Employees
objecting to compulsory attendance at such programs on moral or religious grounds
may enjoy uncertain constitutional protection.12 However, objectors might in some
circumstances find relief in the EEOC regulations which require agencies to
“reasonabl[y] accommodate” the religious needs of employees when this can be done
without “undue hardship” to agency business.13 Nor would the amended order
necessarily preclude even-handed application to all employees, regardless of sexual
orientation, of agency rules governing employee conduct in relation to displays of
affection or other workplace behavior that could “reasonably be expected to interfere
with, or prevent, effective accomplishment by the employing agency of its duties and
responsibilities.”14
The executive order has its most obvious and direct implication on federal
employers and for the rights of employees and applicants for employment in the
Executive Branch. It would not immediately impact the employment practices of
federal contractors--who are subject to nondiscrimination and affirmative action
requirements on the basis of race, ethnicity, and gender imposed by E.O. 11246--or
recipients of federal financial assistance governed by a host of other
nondiscrimination statutes which do not include sexual orientation protections.
9(...continued)
at such times as the Commission may require.” 29 C.F.R.§ 1614.602 (a),(b), and (g).
10 E.g. the Federal Employee Health Benefits Plan defines “member of the family” to
include the “spouse” of an employee and an “unmarried dependent child.” 5 U.S.C. § 8901;
“Spouse” for purposes of the Family and Medical Leave Act, 29 U.S.C. § 2611(13) means
“husband or wife, as the case may be.”
11 118 S.Ct 998 (1998).
12 Cf. Roberts v. United States Jaycees, 468 U.S. 509 (1984)(rejecting First
Amendment challenge to state law forcing a nominally “members-only” association to admit
women to its all-male ranks).
13 29 C.F.R. § 1614.102(a)(7).
14 5 C.F.R. § 731.202(a)(2).

Nonetheless, it is possible that E.O. 11478, as amended, could have ramifications for
the private sector. In addition to internal measures to avoid discrimination and
affirmatively enhance employment opportunities within the agency, federal
employers are directed to engage in “cooperative efforts” with employers, schools,
and public or private groups “at the local level” in aid of these objectives. The
authority to cooperate with local entities could conceivably provide a basis for
requiring or encouraging the adoption of sexual orientation policies by such entities
as a condition to federal cooperation. Some parallel may be found in federal
regulations unrelated to E.O. 11478 which have either mandated nondiscrimination
or required the affirmative consideration of sexual orientation as a criterion by
participants in other federal programs.15 It appears, therefore, that the sexual
orientation amendment to the executive order program could have at least some
policy implications outside the federal workplace.
The ability of federal employees or applicants to complain of and obtain
administrative relief for alleged sexual orientation discrimination under the amended
executive order may largely depend on future rule-making by the employing federal
departments and agencies and/or the EEOC. Current procedures for enforcing equal
employment opportunity with respect to other classes of employees protected by E.O.
11478 are established by EEOC regulations. Briefly, a federal employee aggrieved
by discrimination must first consult with an agency EEO counselor for advice and
informal resolution of the matter which, if unsuccessful, may be followed by a formal
complaint with the employing agency, an investigation, and ultimately a hearing
before an EEOC administrative law judge. Any final agency determination may be
appealed to the EEOC and from there to the federal courts in racial, ethnic, religious,
or gender discrimination cases. A right to judicial review in sexual orientation cases
would not be independently available under the executive order without
congressional authorization.
In addition, an argument could be made that because E.O. 13087 adds “sexual
orientation” only to the statement of policy in § 1, but not the more explicit
“implementation” language in § 3, the employing departments and agencies, rather
than the Commission, may be primarily responsible for determining procedures for
administrative enforcement. A signing statement issued by the President on May 28
possibly suggests such intent when it declares that “[t]his Executive Order [13087]
does not and cannot create any new enforcement rights (such as the ability to proceed
before the Equal Employment Opportunity Commission) . . .” Clouding the issue
further, however, is the fact that the Commission's current authority under § 4 of E.O.
15 E.g. 61 Fed. Reg. 40380, 40388 (8-2-96)(private participants in Groundfish Observer
Program “must assign observers without regard to any preference by representatives of
vessels and shoreside facilities based on observer race, gender, age, religion, or sexual
orientation”); 60 Fed. Reg. 20684, 20692 (4-27-95)(applicants for Runaway and Homeless
Youth Program must identify strategies “for encouraging awareness of and sensitivity to the
diverse needs of runaway and homeless youth who represent particular ethnic and racial
backgrounds, sexual orientations, or are street youth”); 46 Fed. Reg. 18055, 18056 (legal
services programs supported by Legal Services Corporation may not discriminate on the
basis of sexual orientation in delivery of legal services and “must take affirmative action to
end the underutilization of certain protected groups in their workforces”); 59 Fed. Reg.
96599 (3-28-94) (Americorps technical training and assistance to state commissions or
alternative entities to include “developing strategies which encourage mutual respect and
cooperation among citizens of different . . . sexual orientations “).

11478 “to issue such rules, regulations, orders, and instructions, and request such
information from the affected departments and agencies as it deems necessary and
appropriate” remains intact. In any event, while E.O. 13087 may not create
enforcement rights (and only Congress can create a judicial right of action by
statute), the employing agencies and the EEOC share a residuum of rulemaking
authority under E.O. 11478, which could arguably be deployed to procedurally
implement the order at the administrative level.
Another enforcement avenue may exist, however. The Office of Special
Counsel (OSC) was created by the Civil Service Reform Act to investigate
allegations of “prohibited personnel practices” within the executive branch and,
when appropriate, to seek corrective and disciplinary action through auspices of the
Merit System Protection Board (MSPB).16 Falling within the independent
investigatory jurisdiction of the OSC is any allegation of “activities prohibited by any
civil service law, rule, or regulation” and “involvement by an employee in any
prohibited discrimination found by any court or appropriate administrative authority
to have occurred in the course of any personnel action.” 17 Allegations of sexual
orientation discrimination prohibited by E.O. 13087 may come within this definition.
OSC has no independent enforcement authority, however, but where it finds
“reasonable grounds,” may seek stays and corrective action from the MSPB against
the employing agencies and disciplinary sanctions against alleged discriminators.
Questions have arisen as to whether any statutory basis exists for the most recent
amendment to E.O. 11478 regarding sexual orientation discrimination. While
Congress has authorized and approved of the executive order program as applied to
racial minorities and women, both before and after its implementation, the legislative
history of Title VII and the 1972 amendments provides negligible support for the
post-enactment revisions effected by E.O. 13087. The President does, however,
possess executive authority under the federal civil service laws to make such rules
“as will best promote the efficiency of [the] service.” Thus, 5 U.S.C.§ 3301
provides:
The President may---
(1) prescribe such regulations for the admission of individuals into the civil
service in the executive branch as will best promote the efficiency of that service;
(2) ascertain the fitness of applicants as to age, health, character, knowledge, and
ability for the employment sought;
(3) appoint and prescribe the duties of individuals to make inquiries for the
purpose of this section.
In addition, while the Civil Service Reform Act of 1978 does not mention “sexual
orientation,” it incorporates a job-based performance standard which has been
administratively interpreted since the Carter Administration as barring
disqualification of persons from the federal service based on sexual orientation
alone.18 By 1996, at least thirteen cabinet level agencies and 33 independent
16 5 U.S.C. § 1212.
17 Id., § 1216(a)(4),(5).
18 5 U.S.C. § 4302(b)(1)(“performance standards” to be based on “objective criteria.
. .related to the job in question for each employee or position. . .”). See also “Federal
(continued...)

establishments of the U.S. Government had reportedly issued policy statements
forbidding sexual orientation discrimination. These included the Departments of
Justice (including the FBI), Agriculture, Transportation (including the Coast Guard),
Health and Human Services, Interior, Housing and Urban Development, Labor,
Energy and the General Accounting Office, General Services Administration, Internal
Revenue Service, Office of Personnel Management, the White House, and the
Federal Reserve System.19 E.O. 13087 essentially makes such policy universal in the
Federal Executive Branch and with respect to civilian employees of the military
departments and sundry other governmental entities, but would not create judicially
enforceable rights in the absence of congressional action.
On August 5, 1998, the House , by a vote of 176 to 252, defeated a floor
amendment offered by Representative Hefley to H.R. 4276, the FY 1999 Commerce,
Justice, State appropriations measure, that would have prohibited the use of
appropriated funds to implement or enforce E.O. 13087.20.
18(...continued)
Employees Gain Better Protection Against Sexual Orientation Discrimination,” 24 DLR
(BNA) A-9 (Feb. 7, 1994)(citing 1980 Office of Personnel Management memorandum
explaining that sexual orientation discrimination is illegal.)
19 See Serra, “Sexual Orientation and Michigan Law,” 76 Mich. B.J. 948, 949 (1997).
20 144 Cong. Rec. H7263 (daily ed. 8-5-98).

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