The opinion of the court was delivered by: WEINSTEIN
Plaintiff Joan Hill sues the Secretary of Defense, the Secretary of the Army, the Chief of the Army Reserve and other officials, alleging violation of her right to be free from discrimination on the basis of sex. She enlisted in the United States Army on the understanding that she would become a chemical specialist. After her enlistment, the position that she sought was closed to women on the justification that persons with this specialty would likely be exposed to combat.
The court orally dismissed the claims against defendants in their individual capacities and denied them Rule 11 sanctions. In their official capacities, defendants now move to dismiss the complaint for failure to state a claim and, alternatively, for summary judgment. The government's motion for summary judgment must be granted.
While the matter is not free of doubt, on balance the arguments in favor of granting women in the armed services the protection of Title VII of the Civil Rights Act are persuasive. In this case plaintiff's rights under that Act were not violated.
Plaintiff's and defendants' version of the facts do not substantially differ.
In May of 1982, while employed as a clerk in a New York financial firm, Joan Hill enlisted in the Army Reserve in Brooklyn. She was accepted for the position of Nuclear Biological and Chemical Specialist ("NBC Specialist") with a rank of private. An NBC Specialist examines contaminated areas after nuclear, biological or chemical attack. She agreed to attend weekend drills in New York prior to basic training; receive two months of basic training at Fort Jackson, South Carolina, followed by two months of specialized training at Fort McClellan, Alabama; and work approximately one weekend per month and attend two weeks of summer training for the next six years. Compensation was to include training in job skills; salary and bonuses with room, board, uniforms and other benefits during training; salary and medical, dental and life insurance, travel discount, commissary, pension and other benefits after training; and the opportunity to be promoted in rank and salary.
Hill qualified for the position of NBC Specialist on the basis of a written examination and her educational background. She was deemed medically qualified. The Army Reserve set the date for her to proceed to Jackson for basic training on November 12, 1982.
Between May and November 1982, Hill attended the requisite weekend drills as part of the 407th Unit of the Army Reserve at the Reserve Center in Jamaica, Queens, for which work she received a salary. During the drills, the men in the unit often told Hill that as a woman she should not be an NBC Specialist but should change to a clerical job. In one instance a similar statement was made by a superior officer. Nevertheless, Hill prepared for her further training. She purchased the requisite special clothing and equipment at her own expense. She gave up her Manhattan apartment, stored her furniture, and took an unpaid leave of absence from her permanent full-time employment. During this period, Hill received assurances that she would be transferred for full-time training on November 12, 1982.
Meanwhile, in September 1982, defendants had closed the NBC Specialist and 22 other positions to women. The Army did not notify Hill of the closure. When Hill reported on November 12, 1982 for transfer to Fort Jackson, she was informed that she would have to gain weight. She returned with the required weight about November 22, 1982. Army personnel refused to see her. About December 3, 1982, Hill was notified that she was now medically qualified but there was no reservation for her to ship out for basic training.
Finally, about December 8, 1982, Hill was apprised by the Army that it had reclassified the NBC Specialist position as a "combat support role" and closed it to women. She also was told that she was honorably discharged from the Army Reserve and that she would receive her discharge papers promptly. In fact she did not receive the honorable discharge papers until more than a year later, on March 29, 1984. Without them, she had difficulty securing employment. Hill had no income from November 12, 1982 until February 1, 1983, when she regained her job with her former employer.
The Army had closed the NBC Specialist position to women on the recommendation of the Women in the Army Policy Review Group, an organization created within the Pentagon in 1981 to study various issues concerning women in the Army. During that year General Charles Hines devised a new method of calculating which soldiers were most likely to engage in direct combat. General Hines, who has a Ph.D. in social psychology, relied on organizational descriptions and questionnaires to identify the probability of combat in every Army position. As more particularly described in Part III, infra, he reported that the NBC Specialist position was one from which combat replacements were drawn, and that if more than a few women occupied the position combat readiness would be endangered. Accordingly, the policy group recommended that the position be closed to women. The Army followed this recommendation.
The decision generated adverse comment. In April 1983 the Army reassessed the NBC Specialist position and others in light of newly created personnel categories. General Hines' methodology was again followed. The 1983 results showed that positions at the combat-likelihood level of NBC Specialist could accommodate more women without a threat to combat readiness. Accordingly, in October 1983, the Army reclassified the NBC Specialist position as non-combat. Women are now working in the position Hill chose, qualified for, and could not enter.
Since the claims against the individual defendants and the request for damages pursuant to the Fifth Amendment have been dismissed, all that remains of plaintiff's action in this court are two claims: one based upon Title VII and one for a declaration that plaintiff's equal protection rights under the Constitution were violated.
Whether Title VII applies to the uniformed members of the armed forces is not clear. The bare language used by Congress supports plaintiff's position. Some of the history, antecedents and analogous statutory treatment argue in favor of defendants' view. The legislative history is sparse to nonexistent. If Congress gave any thought to the issue this court has found no appreciable written traces of its cogitation.
An analysis of the problem presents two issues. First, does Title VII apply, and, if it does, second, was the discrimination authorized because of a bona fide occupational qualification.
A. Applicability of Title VII to the Armed Forces
Title VII was enacted in 1964, as a part of omnibus legislation, to make it illegal for an employer to discriminate in employment on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2. It empowered both private and governmental enforcement. See 42 U.S.C. §§ 2000e-5, 2000e-6, 2000e-8, 2000-12. The Civil Rights Act of 1964 covered all private employers, except those that did not affect interstate commerce, and those with fewer than fifteen employees. See 42 U.S.C. 2000e-7, 2000e(b).
In 1972, Congress amended Title VII to cover employees of the federal government:
Discrimination prohibited. All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.
Act of March 24, 1972, Pub. L. No. 92-261, 86 Stat. 111, codified at 42 U.S.C. § 2000e-16(a)(1972) (emphasis added).
Section 102 of Title 5 states in full:
The military departments are:
The Department of the Navy.
The Department of the Air Force.
42 U.S.C. § 2000e-16(a) provides no other definitions or explanations of these terms.
On their face these provisions include the armed forces. Plaintiff, in addition, argues that Title VII, as a broad remedial statute, should be applied to discrimination on the basis of sex within the uniformed military. Defendants take the position that history and a common sense evaluation of the special needs of the military make it absurd to read Title VII literally.
We are somewhat trepidacious about holding that Title VII applies to the military forces because case law has consistently held to the contrary. See Gonzalez v. Department of the Army, 718 F.2d 926, 927-29 (9th Cir. 1983); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir. 1977); Johnson v. Hoffman, 424 F. Supp. 490, 493 (E.D. 1977), aff'd sub nom. Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir.), cert. denied, 439 U.S. 986, 99 S. Ct. 579, 58 L. Ed. 2d 658 (1978); Cobb v. United States Merchant Marine Academy, 592 F. Supp. 640, 642 (E.D.N.Y. 1984); Hunter v. Stetson, 444 F. Supp. 238, 239 (E.D.N.Y. 1977) (dicta). With the aid of the excellent briefs of plaintiff's distinguished pro bono counsel and amicus, we have concluded that we must respectfully disagree with this unbroken line of authority.
The announced purpose of Title VII was to eradicate discrimination; the goal of the 1972 amending legislation was to accord "[a]ggrieved [federal] employees or applicants the full rights available in the courts as are granted to individuals in the private sector under Title VII." S.Rep. No. 92-415, 92nd Cong., 1st Sess. at 16 (1971). Before passage of the enabling legislation, there was "serious doubt that court review [was] available to the aggrieved Federal employee." H.R. Rep. No. 92-238, 92d Cong., 1st Sess. at 25, reprinted in 1972 U.S. Code Cong. & Admin. News at 2160.
The Supreme Court has often emphasized the legislative design to ensure that federal employees have the same right to freedom from unlawful discrimination as do private sector employees. See, e.g., Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416 (1976); Brown v. General Services Administration, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976); Morton v. Mancari, 417 U.S. 535, 547, 94 S. Ct. 2474, 2481, 41 L. Ed. 2d 290 (1974).
The rights of federal employees do not, however, perfectly parallel those of private sector employees. Had Congress intended an exact parallel the 1972 amendments would have been far simpler: an added section stating that the federal government is an "employer." Such a choice was expressly rejected in the definitional section of Title VII. The United States is not an "employer" for purposes of the statute. See 42 U.S.C. § 2000e(b). Similarly, a federal agency is an "executive agency" under § 2000e-16(a) and not an "employer" under § 2000e(b). See Dorsey v. Federal Reserve Bank of St. Louis, 451 F. Supp. 683 (E.D. Mo. 1978). Section 2000e-16(a) sets forth the limited categories of personnel who are covered by Title VII as amended. The provisions of Title VII that deal with "employers" and "employees" apply only to non-federal workers.
Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979), relied upon on this distinction. Plaintiff was not permitted to press her suit against Congressman Passman under Title VII because she had not been hired in the "competitive service" of the federal government. See 42 U.S.C. § 2000e-16(a). "When § 717 was added to Title VII to protect federal employees from discrimination," Justice Brennan wrote, "it failed to extend this protection to congressional employees such as petitioner who are not in the competitive service." 442 U.S. at 247 & n.26, 99 S. Ct. at 2264 & n.26, 60 L. Ed. 2d 846. See also Lawrence v. Staats, 205 U.S. App. D.C. 341, 640 F.2d 427 (D.C. Cir. 1981) ("excepted service employee" not covered by Title VII). The mandate expressed in legislative history -- to ensure that the federal government is an example to private employers -- cannot be read to exceed the limiting language of § 2000e-16(a).
Because of these limiting precedents, Title VII can be applied to the military only if "military departments" in the statute includes the uniformed military. There is no jurisdictional basis other than § 2000e-16(a) to hold a federal government organization to the standards of Title VII.
Military policy presents the ultimate dilemma of § 2000e-16(a). In Davis, the dissenting Justices were concerned about the holding allowing plaintiff to bring her claim against a congressman under the Constitution. Yet gender bases for decisionmaking in the military run far deeper than the preference expressed in Congressman Passman's letter to Davis: "[I]t was essential that the understudy to my Administrative Assistant be a man." 442 U.S. 228, 230 n.3, 99 S. Ct. 2264, 2269 n.3, 60 L. Ed. 2d 846 ...