Prof. Wherry circulated this yesterday on the new SSRN Veterans & Military Law & Policy eJournal.
You Catch More Flies with Honey: Reevaluating the Erroneous Premises of the Military Exception to Title VII -- Craig Westergard
Abtract: Discrimination is a problem in the military. Though Title VII of the Civil Rights Act prohibits employment discrimination in the "military departments," courts have held that the statute does not apply to members of the military. The primary justification for this judge-made exception is that Title VII suits might have an adverse effect on military discipline. In their haste to condemn suits for military discrimination, however, courts tend to overlook the negative effects discrimination has on discipline, as well as the positive effects of diversity. This Note calls upon Congress to abrogate the military exception to Title VII in the alternative, it argues that courts should reconsider the exception in light of discrimination's true effects.
In addition to its eroded policy foundations, the judicial exception to Title VII contradicts the ordinary language of the statute. The term "military departments" naturally includes servicepersons, who are employees, and there is no compelling reason to depart from the statute's ordinary meaning. The exception is also contrary to the statute's broad remedial purpose and much of the legislative history surrounding Title VII. The rationales the circuit courts use to conclude that members of the military cannot bring Title VII claims are inconsistent and contradictory, and the exception has resulted in confusion when applied to quasi-military personnel. As such, the military exception to Title VII should be abandoned — left in the past along with other vestiges of discrimination.