At page 248 Determining title vii applicability to uniformed military personnel33 citing casesrefusing to extend Title VII protection to uniformed members of the armed forces “[i]n the absence of some express indication in the legislative history that Congress intended” as such
- Corey v. United States of, No. 96-6409, 1997 WL 474521 (10th Cir. Aug. 20, 1997).unpublished(we cannot agree to the extension of Title VII to uniformed members of the armed forces.)
- Carlson v. United States Dept. of Health & Human Servs., 879 F. Supp. 545 (D. Md. 1995).published (The relationship between the government and a uniformed member of the military *548 remains unlike the relationship which exists between civilian employer and employee.)
- Martinez v. McCarthy, 838 F. App'x 611 (2d Cir. 2020).unpublishedAs relevant here, we have held, “Title VII creates a limited exception to the Feres doctrine that allows some lawsuits to be brought pursuant to the provisions of Title VII if the plaintiff is a civilian employee of the military.” Id. at 9…
- Gary Jackson v. Thomas Modly, 949 F.3d 763 (D.C. Cir. 2020).published See, e.g., Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000); Coffman v. Michigan, 120 F.3d 57, 59 (6th Cir. 1997); Randall v. United States, 95 F.3d 339, 343 (4th Cir. 1996); Stinson v. Hornsby, 821 F.2d 1537, 1539 (11th Cir. 1987…
- Pérez v. Puerto Rico Nat'l Guard, 951 F. Supp. 2d 279 (D.P.R. 2013).publishedFisher, 249 F.3d at 439 (6th Cir.2001); Hodge v. Dalton, 107 F.3d 705, 708-09 (9th Cir.1997); Randall v. U.S., 95 F.3d 339 , 343 (4th Cir.1996); Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2d Cir.1987); Gonzalez v. Dep’t of the Army, 71…
- Gibbs v. Newport News Shipbuildng & Drydock Co., 733 S.E.2d 648 (Va. 2012).publishedRoper v. Department of Army, 832 F.2d 247, 248 (2d Cir. 1987).
- Jones v. 106th Rescue Wing, 859 F. Supp. 2d 381 (E.D.N.Y. 2012).publishedJones v. New York State Division of Military and Naval Affairs, 166 F.3d 45, 51 (2d Cir.1999); see also Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 88-89 (2d Cir.2004) (Feres doctrine bars members of the mili…
- Willis v. Roche, 256 F. App'x 534 (3d Cir. 2007).unpublishedSee, e.g., Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir.1987) (holding that the Feres doctrine bars Title VII claims by military personnel on active duty); Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2d Cir.1987) (same); Gonzalez v…
- Veitch, D. Philip v. England, Gordon R., 471 F.3d 124 (D.C. Cir. 2006).published See, e.g., Fisher v. Peters, 249 F.3d 433, 438 (6th Cir.2001); Brown v. United States, 227 F.3d 295, 298 (5th Cir.2000); Hodge v. Dalton, 107 F.3d 705, 707-12 (9th Cir.1997); Randall v. United States, 95 F.3d 339, 343 (4th Cir.1996); Doe v…
- Moore v. Pennsylvania Dep't of Military & Vets. Affairs, 216 F. Supp. 2d 446 (E.D. Pa. 2002).published(refusing to extend Title VII protection to uniformed members of the armed forces “[i]n the absence of some express indication in the legislative history that Congress intended” as such)
Show 18 more citing cases
- Cummings v. Dep't of the Navy, 279 F.3d 1051 (D.C. Cir. 2002).published (holding that in the “absence of some express indication” from Congress, Title VII does not apply to the military)
- Pilchman v. Dep't of Def., 154 F. Supp. 2d 415 (E.D.N.Y. 2001).published(we refuse to extend a judicial remedy for alleged discrimination in civilian employment to the dissimilar employment context of the military)
- NOAA Corps Eligibility for Prof'l Liab. Ins. Costs Reimbursement (OLC 2001).published As DOC points out in applying the “broader context” approach of Robinson v. Shell Oil, the Reimbursement Law could be said to fall within the general body of laws codified in title 5 covering government organization and employees, although…
- Philip B. Baldwin v. United States Army, 223 F.3d 100 (2d Cir. 2000).publishedSee Spain v. Ball, 928 F.2d 61, 62-63 (2d Cir.1991); Roper v. Department of the Army, 832 F.2d 247, 248 (2d Cir.1987).
- 73 Fair empl.prac.cas. (Bna) 269, 69 Empl. Prac. Dec. P 44,523, 97 Cal. Daily Op. Serv. 1112, 97 Daily Journal D.A.R. 1713 W.L. Hodge v. John Dalton, Officially as Sec'y of the Navy, 107 F.3d 705 (9th Cir. 1997).published (barring army reserve member's claim that she was not promoted due to racial and sexual discrimination)
- Hodge v. Dalton, 107 F.3d 705 (9th Cir. 1997).published See, e.g., Doe v. Garrett, 903 F.2d 1455, 1461-62 (11th Cir.1990) (barring naval reserve member’s Rehabilitation Act claim that his release from active-duty military was due to discrimination based on his handicap), cert. denied, 499 U.S.…
- Randall v. United States, 95 F.3d 339 (4th Cir. 1996).published E.g., Roper v. Department of Army, 832 F.2d 247, 248 (2d Cir.1987); Gonzalez v. Department of Army, 718 F.2d 926, 928-29 (9th Cir.1983); Johnson v. Alexander, 572 F.2d 1219 (8th Cir.), cert. denied, 439 U.S. 986 , 99 S.Ct. 579 , 58 L.Ed.2d…
- Leistiko v. Sec'y of the Army, 922 F. Supp. 66 (N.D. Ohio 1996).publishedSee, e.g., Doe v. Garrett, 903 F.2d 1455, 1461 (11th Cir.1990), cert. denied, 499 U.S. 904 , 111 S.Ct. 1102 , 113 L.Ed.2d 213 (1991); Roper v. Department of the Army, 832 F.2d 247, 248 (2d Cir.1987); Gonzalez v. Department of the Army, 718…
- Gary S. Fowler v. William J. Perry, Sec'y, Dep't of Def., 70 F.3d 111 (4th Cir. 1995).unpublishedRoper v. Department of Army, 832 F.2d 247, 248 (2d Cir.1987); Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir.1987), cert. denied, 488 U.S. 959 (1988); Gonzalez v. Department of Army, 718 F.2d 926, 928-29 (9th Cir.1983); Johnson v. Alexa…
- Collins v. Sec'y of the Navy, 814 F. Supp. 130 (D.D.C. 1993).published Doe v. Garrett, 903 F.2d 1455, 1461 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1102 , 113 L.Ed.2d 213 (1991); Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir.1987), cert. denied, 488 U.S. 959 , 109 S.Ct. 402 , 102 L.Ed.2d 390 (19…
- Linza v. Saul, 990 F.3d 243 (2d Cir. 2021).published(noting that military departments are meant 11 to include only civilian employees, not enlisted personnel)
- Bowers v. Wynne, 615 F.3d 455 (6th Cir. 2010).published (determining that Title VII does not apply to a member of the Army Reserve)
- Gabryluk v. U.S. Army Chief, 347 F. App'x 696 (2d Cir. 2009).unpublished ([W]e refuse to extend a judicial remedy for alleged discrimination in civilian employment to the dissimilar employment context of the military, especially given the need for deference to the military in matters involvi…)
- Overton v. New York State Div. of Military & Naval Affairs, 373 F.3d 83 (2d Cir. 2004).published (holding that the “express indication” of Congress supersedes the Feres doctrine)
- Luckett v. Bure, 290 F.3d 493 (2d Cir. 2002).published See Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2d Cir.1987).
- Doe v. Garrett, 903 F.2d 1455 (11th Cir. 1990).published See Stinson v. Hornsby, 821 F.2d 1537, 1539, 1541 (11th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 402 , 102 L.Ed.2d 390 (1988); accord Roper v. Department of the Army, 832 F.2d 247, 248 (2d Cir.1987); Gonzalez v. Department of the…
- HUMAN RIGHTS COM'N v. Dept. of Def., 627 A.2d 1005 (Me. 1993).publishedMost federal courts have construed Title VII, the federal employment discrimination statute, as not applying to uniformed military personnel, and have concluded that had Congress intended that it so apply, Congress would have provided for…
- Maine Human Rights Comm'n v. Maine Dep't of Def. & Vets.' Servs., 627 A.2d 1005 (Me. 1993).publishedMost federal courts have construed Title VII, the federal employment discrimination statute, as not applying to uniformed military personnel, and have concluded that had Congress intended that it so apply, Congress would have provided for…
At page 247 Title VII applicability to uniformed military personnel3 citing cases“a technician ... is an employee of the department of the army or the department of the air force, as the case may be, and an employee of the united states.”
- Hoffler v. Hagel, 122 F. Supp. 3d 438 (E.D.N.C. 2015).publishedSee, e.g., Middlebrooks v. Leavitt, 525 F.3d 341, 344 (4th Cir.2008); Randall, 95 F.3d at 343 ; Roper v. Dep’t of Army, 832 F.2d 247, 247-48 (2d Cir.1987).
- Golding v. United States, 48 Fed. Cl. 697 (Fed. Cl. 2001).publishedNor does Title VII apply to military personnel. 28 See Canonica v. United States, 41 Fed.Cl. 516, 522-23 (1998) (Title VII does not apply to military personnel, citing Roper v. Department of Army, 832 F.2d 247, 247-48 (2d Cir.1987) and Gon…
- Canonica v. United States, 41 Fed. Cl. 516 (Fed. Cl. 1998).publishedSee, e.g., Roper v. Department of the Army, 832 F.2d 247, 247-48 (2d Cir.1987); Gonzalez v. Department of the Army, 718 F.2d 926 , 927-29 (9th Cir. 1988).
v.
Department of the Army
Staff Sergeant Jestine Roper, a uniformed member of the United States Army Reserve, appeals from the district court’s dismissal of her complaint alleging race and sex discrimination by the Department of the Army in violation of Title VII, 42 U.S.C. § 2000e-16 (1982). The district court [1] granted the Army’s motion to dismiss on the ground that Title VII does not apply to uniformed members of the armed forces. We affirm.
I. BACKGROUND
Ms. Roper initially entered the Army Reserve in 1979 as a Private First Class and was promoted to the rank of Sergeant in 1981. In 1983, the position of warrant officer in the 99th Signal Battalion became vacant and Ms. Roper expressed interest in the office. In October of 1983, Ms. Roper appeared before the warrant officer board in regard to her application to fill the warrant officer vacancy. Ms. Roper was denied the promotion. Two months later, two warrant officers informed her that the board rejected her application because her personality was perceived as “too soft.” Ms. Roper was subsequently transferred to another company within her battalion, and was promoted to the next enlisted rank in 1986, five years after her last promotion.
Ms. Roper brought suit pro se on June 20, 1986, alleging that she was denied promotion in the armed forces due to her race and sex. The Army moved to dismiss the complaint on the ground that Title VII does not apply to uniformed military personnel. The district court granted the motion. This appeal followed.
II. DISCUSSION
The sole issue presented in this case is whether Title VII applies to uniformed[*248] members of the armed forces. While we are sympathetic to Ms. Roper’s complaint, the cases in other circuits do not support her position. Both the Eighth and Ninth Circuits have unequivocally held Title VII inapplicable to uniformed members of the military. See Gonzalez v. Department of the Army, 718 F.2d 926 (9th Cir.1983); Johnson v. Alexander, 572 F.2d 1219 (8th Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978); accord Taylor v. Jones, 653 F.2d 1193 (8th Cir.1981).
Title VII was designed to protect from discrimination “employees or applicants for employment * * * in military departments * * 42 U.S.C. § 2000e-16(a). A comparison of the language Congress uses when referring to civilian employees of the various military departments, as opposed to uniformed military personnel, [2] indicates that Congress intended the term “military department” to include only civilian employees, and not enlisted personnel. Gonzalez, 718 F.2d at 928. Further, nothing in the legislative history indicates that Congress sought to vest the Equal Employment Opportunity Commission (EEOC), responsible for Title VII enforcement, with the power to review the hiring and employment practices of the Armed Forces.
In Hill v. Berkman, 635 F.Supp. 1228 (E.D.N.Y.1986), cited in Ms. Roper’s brief, Chief Judge Weinstein presents cogent arguments in favor of applying Title VII to uniformed military personnel. Judge Weinstein observes that the legislative history of 42 U.S.C. § 2000e-16 is hardly pellucid as to whether Title VII applies to the uniformed military and does not compel exclusion of uniformed personnel from the Act’s coverage. Moreover, he notes that since the withdrawal from Vietnam, the military increasingly resembles a civilian employer in its relationship with uniformed military personnel, offering health care, housing, training courses, and the opportunity to study at civilian universities.
While these arguments carry weight, we cannot agree to the extension of Title VII to uniformed members of the armed forces. Military service continues to differ materially from civilian employment in that officers and personnel are subject to military law and unable to terminate such employment at will. See Johnson, 572 F.2d at 1223. The relationship between the government and a uniformed member of the military remains unlike the relationship which exists between civilian employer and employee. In the absence of some express indication in the legislative history that Congress intended Title VII to apply to uniformed members of the armed forces, we refuse to extend a judicial remedy for alleged discrimination in civilian employment to the dissimilar employment context of the military, especially given the need for deference to the military in matters involving hierarchy and structure of command. See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (deference to hierarchical military structure precludes claim of race discrimination in work assignments where congress has provided no such cause of action).
Accordingly, we affirm the district court judgment.
. The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York.
. 5 U.S.C. § 102, referring to section 101(7) of title 10, defines military departments as “The Department(s) of the Army * * * Navy [and] * * * the Air Force.” Section 101 of title 10 contains a separate definition for "armed forces” meaning "the Army, Navy, Air Force, Marine Corps, and Coast Guard.”