Maj. Marilyn Burden is optimistic lawmakers are on the right track toward addressing workplace discrimination and retaliation issues she witnessed over 17 years working at the Wyoming Air National Guard.
Three years after transferring to the Colorado Air Reserve, the Cheyenne resident in November proudly “infiltrated” her former employer’s “source of power,” by showing up for a meeting of the Wyoming Legislature’s Transportation, Highways and Military Affairs Committee. She publicly shared her own experience working within a military culture she described as “toxic” and lacking accountability, and presented the committee with eight recommendations to address those alleged systemic problems.
Two months later three military-related bills emerged from the same committee, one of which creates a new state position overseeing complaints and broadens options for guard members and employees seeking redress.
“The bottom line is this bill is a really good start,” Burden told WyoFile.
The committee’s effort to craft legislation followed a WyoFile investigation that spotlighted the stories of several former guard members and employees whose reports of harassment and discrimination were met with excuses, suspicion, hostility and retaliation.
“Recent media attention highlighting sexual harassment, sexual assault, abuse of power, failure to investigate complaints, allegations of child abuse and failure to properly use Air Force and Army regulations for the past 15-plus years have brought me to today’s meeting,” Burden told lawmakers during her November testimony.
The Wyoming National Guard Adjutant Gen. Gregory C. Porter has gone on the defensive when confronted with allegations of systemic abuses. The Wyoming Military Department declined to make the general or other staffers available for an interview, but Porter has publicly contended that there’s not a culture of harassment. Instead, the general has pointed to “individual bad actors” while saying there’s room for improvement.
Two of the bills that cleared committee and are headed for the Legislature’s upcoming budget session specifically address harassment and workplace discrimination issues. One orders an annual report completed each fall presenting the past year’s data on sexual harassment, discrimination and assault cases.
Porter and those in his command have completed such reports voluntarily, holding up their results as evidence that improper responses are the exception, not the norm. “What I observe in my assessment is we do a really good job of taking care of our victims once it happens,” the adjutant general told lawmakers in November.
The complaint-related legislation advanced by the committee has two primary components. One, the bill siphons $201,188 from the state’s general fund to cover the salary and related expenses needed for a full-time Wyoming Department of Workforce Services employee who will prioritize the investigation of military complaints. That person would be available to those dissatisfied with the Guard’s response. Rep. Clarence Styvar (R-Cheyenne) explained to fellow committee members on Jan. 11 that access to Workforce Services assistance would be as simple as “a phone call, basically.”
Styvar, a former U.S. Army infantryman, views the legislative effort similarly to Burden, who’s a constituent from his district.
“Like I told Marilyn, this is not going to fix everything, but this is a good start,” Styvar told WyoFile. “It’s in statute. We can build on it from here. If it’s a flop, we can look at something else.”
Styvar’s experience of impropriety in the workplace during his own tenure in the military leads him to believe “widespread” issues have persisted.
“When I was there,” he said, “there was a ‘good old boys syndrome.’”
The complaint-focused legislation also creates a Workforce Services grievance process for federal employees who are members of the Wyoming National Guard, but aren’t active-duty soldiers or airmen.
“It opens another avenue, if they don’t feel like the military is treating them right,” Styvar said.
The bill calls for Porter to be the ultimate recipient of complaints from service members who believe their reports of workplace hostility were mishandled by a commanding officer. It tasks the adjutant general with entering into an agreement with Workforce Services to “counsel, mediate, investigate and determine” claims of federal equal employment opportunity law infractions. Wyoming’s top military officer would also be in charge of promulgating related rules.
Center for Law and Military Policy CEO Dwight Stirling said the bill doesn’t provide for the independent oversight needed. ”W hen you let the party who’s being regulated write the regulations, there’s an inherent conflict of interest,” he said.
But it’s standard procedure to resolve disputes within the military’s chain of command. Enlisted service members are prohibited from suing their employer — the government — as a result of a 72-year-old U.S. Supreme Court case, Feres v. United States. The court’s resolution to that dispute, over a 1947 barracks fire that killed multiple servicemen, set a precedent giving the federal government immunity from injuries sustained by active duty armed forces.
Stirling said that adding resources and avenues for complaints — like Wyoming legislators are now proposing — can be good, but it will help civilian employees more than enlisted guard members. These “process-based responses” are standard in the modern military, the California National Guard member said, and they relegate service members to “second-class” citizens lacking the liberties of civilians.
Asked what would be a more-effective means of reform, Stirling said there’s a “simple, elegant” answer: “Just let the guard member walk across the street [to the courthouse] and sue.” That would give members the same rights as civilians who work for the guard.
“I contend, and I always have, that it’d be really easy to fix this,” Stirling said. “Congress would just have to pass a new law that said if you’re serving you can sue, and that’d be the end of the Feres doctrine. Until that happens, it’d be up to a state to say, ‘Our service members can sue.’”
Conservative justices, Stirling said, have most vocally criticized the Feres doctrine, last challenged in the Supreme Court in 1987. That year a Ronald Reagan appointee, Justice Antonin Scalia, wrote the dissenting opinion in a case over a coast guard helicopter pilot’s death that ultimately upheld the U.S. Government’s immunity.
“It’s your true, red conservatives who hate Feres,” Stirling said.
But one of the more prominent far-right senators on the Transportation, Highways and Military Affairs Committee, Anthony Bouchard (R-Cheyenne), sees those types of legal disputes as a distraction.
“Lawyers can argue about the Feres doctrine and they could probably discuss it for 10 years and do nothing while they’re frickin’ stomping on womens’ civil rights,” Bouchard said. “The fact of the matter is that you’ve got people at the top whose heads need to roll.”
Styvar, the former infantryman, was uneasy with the concept of challenging the longstanding legal precedent through legislation.
“You make a personal choice to sign a blank check to the United States Army, Air Force, Marines, whoever you sign on with, and you’re not going to get your way all the time,” he said.
Burden also omitted a Feres doctrine challenge from the recommendations she relayed to legislators in November. Instead, she called for actions like a new “oversight review board” and for an outside agency to investigate the Wyoming Military Department and prepare an independent report.
“What I really want is people in the military to use the military processes appropriately, hold each other accountable and do the right thing,” Burden told WyoFile. “That’s what I want.”