Equal Pay for Equal Work? - the Distributional Effects of the Assignment Policy for Military Women

Article excerpt

In September 2003, Captain Kellie McCoy was leading a platoon of soldiers in a four-truck convoy on an Iraqi highway between Fallujah and Ramadi when her platoon was ambushed. The lead truck hit an Improvised Explosive Device (IED) as another IED detonated behind it. The enemy rushed the convoy from both sides of the road, firing at the trucks with rifles and rocket-propelled grenades. Captain McCoy's Humvee was the only one that survived the attack; the other three vehicles were badly damaged by the bombs and by small arms fire, and several of the soldiers were wounded. With cover only from the rooftop gunner and her own M-4 carbine, Captain McCoy managed to rescue all of the men from the other trucks while under continuous fire from the attackers, eventually driving the four-seat Humvee loaded with twelve passengers to safety. For her actions that afternoon, Captain McCoy was awarded the Bronze Star. (1)

There was a time in the not-too-distant past when driving a truck between two cities was considered a routine and relatively safe military assignment. Then, as now, a unit undertaking this task would be known as a combat support unit. However, since U.S. military involvement in Afghanistan and Iraq began, the roads in those nations have proved to be anything but safe. Meanwhile, many of the more than 220,000 women who have served in these wars since 2001 (2) have undertaken the essential and dangerous job of transporting troops, equipment, and supplies along the desert highways. Military women regularly come under enemy fire in these and other "combat support" capacities. (3)

Yet, nearly two decades after the last statutory bar to women's participation in combat was removed, female service members in the Army, Navy, Air Force and Marine Corps remain barred from positions that involve direct ground combat under a Department of Defense policy. (4) This policy has remained in place even as the days of neat, congruent battlefields and easily identifiable front lines have largely disappeared. And, in response to operational realities on the ground, military women in Iraq and Afghanistan have been engaging in combat operations, sometimes under the radar of the official assignment policy. (5)

For decades, scholars and commentators have debated the constitutional, social, political and military readiness issues surrounding the combat exclusion. (6) The courts have weighed in, giving substantial deference to legislative judgment in the face of statutes and policies that, on their very faces, employ sex-based classifications. (7) This literature has paid relatively little attention to how women in the military have been impacted economically by their exclusion from combat positions.

This Article aims to assess whether distributional inequalities arise from the Department of Defense policy excluding women from direct ground combat in the U.S. military. Discovering that economic inequality does result from the policy, especially in the upper ranks, it then assesses whether any existing legal framework could remedy the disparities. Finding that none can, the Article concludes with a call for a reassessment of the policy.

Part I lays out the history of the combat exclusion and observes that regardless of the official policy, military women are in fact widely engaged in ground combat operations. Part II discusses the previous scholarly treatment of the policy and argues that the policy's discriminatory effects can be better understood by taking its economic impacts more comprehensively into account. Part III assesses the distributional effects of the combat exclusion, and Part IV asks whether the existing legal frameworks of gender discrimination or Title VII can remedy the policy's disparate impact.

I. History of the Combat Exclusion and Its Status Today

Women have served the U.S. Armed Forces since the Revolutionary War. (8) Before World War II, their service arose mainly in civilian support services such as laundry and food preparation. …