Labor & Employment Law Daily Title VII does not apply to uniformed members of the armed forces, DC Circuit agrees
Wednesday, February 19, 2020

Title VII does not apply to uniformed members of the armed forces, DC Circuit agrees

By Kathleen Kapusta, J.D.

The appeals court stressed that it was not holding that because military service is distinct from traditional employment, the military is free to discriminate.

Addressing for the first time whether Title VII’s provision covering federal employees applies to uniformed servicemembers, the D.C. Circuit, joining “the unanimous rulings of its sister circuits,” held that it does not. Accordingly, the appeals court affirmed the dismissal of a former marine’s Title VII claims against the Secretary of Navy alleging that toward the end of his military career, his supervising officers discriminated against him based on his race and sex (Jackson v. Modly, February 14, 2020, Henderson, K.).

One less black staff sergeant. According to the former servicemember, who had served in the U.S. Marine Corps from 1977 until 1991, while stationed in Arlington, Virginia, toward the end of his service, his superiors began discriminating against him. Specifically, he claimed that on one occasion, he was moved to a different part of the warehouse where he was working because his superior “preferred that the number of Blacks not exceed the number of whites in any one section of the Warehouse.” He also claimed his superiors intentionally delayed responding to his request to attend a training academy, placed false accusations in his military record, went to extraordinary lengths to prevent his reenlistment, and upon his discharge, one superior said to another, “We finally got [him]. That’s one less Black Staff Sergeant.”

Lower court proceedings. He ultimately filed a pro se complaint in federal district court asserting, among other things, Title VII claims against the Secretary of Navy. The court, finding that Title VII did not apply to uniformed servicemembers of the armed forces, dismissed his claims.

1972 amendment. On appeal, the D.C. Circuit first noted that while Title VII did not originally apply to the federal government, a 1972 amendment extended its protections to federal as well as state and local employees. That provision, as relevant here, states that “[a]ll personnel actions affecting employees or applicants for employment in military departments as defined in section 102 of Title 5″ and other federal departments “shall be made free from any discrimination based on race, color, religion, sex, or national origin.”

Military departments. Turning first to the text of this provision, the court rejected “a textual hook other courts and the Secretary here erroneously rely upon to reach the conclusion that Title VII does not include uniformed members of the armed forces—namely, the term ‘military departments.’” Title 5, the court observed, as well as Title 10—which codifies Congress’s structuring of the military—define military departments as “The Department of the Army. The Department of the Navy. The Department of the Air Force.” Both Titles also define the “armed forces” as “the Army, Navy, Air Force, Marine Corps, and Coast Guard.” Thus, the D.C. Circuit observed, other courts have concluded that because Congress treats military departments and armed forces as distinct terms, uniformed members of the armed forces are not covered by Title VII.

Title 5. But, the appeals court explained, “a quick review of the Congress’s structuring of the military in Title 10 shows that uniformed members of the armed forces are within the umbrella of the military departments,” and thus the military departments contain both civilian employees and the armed forces. Noting that while this supports an interpretation that Title VII covers uniformed members of the armed forces, the court pointed out that “Congress specifically chose to say ‘employees in military departments as defined in section 102 of Title 5.” And Title 5 is the title that was codified to organize the civilian officers and employees of the U.S. government.

Putting all the provisions of Title 5 together, including its definition of employee and civil service, the court explained that when Congress specifically referenced section 102 of Title 5 in the 1972 amendment to Title VII, it extended Title VII protections only to federal civilian employees within the military departments, not members of the armed forces, which it considered to be outside the definition of employees in the federal civil service.

Material differences. Next the court found that “Congress’s incorporation of the civil service definition of employee in Title 5, which does not cover uniformed members of the armed forces, comports with the unique nature of the armed forces as composed of ‘individual[s]’ not ‘employed by an employer’ within the meaning of Title VII.” Uniformed servicemembers, it observed, are not free to leave their jobs and can be court martialed if they attempt to do so before the required time of service is complete. Further, servicemembers currently volunteer to serve but if the government were to reinstate the draft, individuals could be forced to join the military. Agreeing with the Eighth Circuit, the court noted that because military service “differs materially” from “ordinary civilian employment,” uniformed servicemembers are not employed by the government within the meaning of Title VII.

Congress’s inaction. In addition, the court reasoned, not only has every circuit to have addressed the issue since 1978 held that Title VII does not apply to uniformed members of the armed forces, Congress had never amended Title VII to include uniformed servicemembers within the statute’s protections. This inaction, said the court, is significant because while Congress has amended various parts of Title VII, it “has never sought to override our sister circuits’ determination that uniformed members of the armed forces are not included under Title VII.” Further, that it has over the years addressed race and sex discrimination in the armed forces “provides added assurance of its awareness and approval of the inapplicability of Title VII itself to the armed forces.”

Accordingly, the appeals court found that based on the text, structure, and content of Title VII’s federal employee provision, as well as “Congress’s subsequent actions in light of the unanimous circuit precedent on the issue,” Title VII does not apply to uniformed members of the armed forces.

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