Protecting Our Protectors: Why Title VII Should Apply to the Uniformed Military Following the Supreme Court's Decision in Bostock v. Clayton County

Abstract

This Note argues that Title VII should apply to uniformed military members following the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Foremost, the current intra‑military remedies uniformed military members may bring a discrimination claim pursuant fail to effectively combat discrimination in the United States military due to several critical deficiencies. This Note demonstrates that the defects within the current intra‑military remedies tacitly permit, rather than discourage, discriminatory conduct.

This Note then examines why the military has historically resisted civilian reform measures to the military justice system. During this examination, this Note argues that the United States military is bifurcated between uniformed military members who work within the military’s increasingly complex military bureaucracy and front-line soldiers exposed to combat. This Note contends that uniformed military members tasked with operating the military’s bureaucracy work in an environment more analogous to the civilian workplace. Accordingly, these military members fall within the purview of civilian reform measures. Regarding combat soldiers, this Note explains that throughout the history of the United States, the military has been forced to accept civilian reform measures designed to end discriminatory practices within the military. Significantly, these policies made no distinction between combat and non-combat soldiers.

This Note then argues why a Title VII claim is the appropriate remedy to combat discrimination in the United States military before demonstrating why Title VII should apply to uniformed military members following the Supreme Court’s decision in Bostock. Based on the majority’s decision in Bostock, this Note concludes that the rationales set forth by the United States Courts of Appeals prior to Bostock excluding uniformed military members from Title VII’s remedial scheme should no longer be followed considering Bostock.

This Note calls on the judiciary to reconsider whether Title VII should apply to uniformed military members. Members of the United States military rightfully deserve protection under the very laws they preserve pursuant to their service and sacrifice.

Recommended Citation

Jonathan A. D'Orazio, Protecting Our Protectors: Why Title VII Should Apply to the Uniformed Military Following the Supreme Court's Decision in Bostock v. Clayton County, 23(1) Marq. Ben & Soc. Welfare L. Rev. 9 (Fall 2021).