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

Dieckmann, Christina M., Columbia Journal of Gender and Law

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. (9) In World War I, 23,000 women served in the United States and overseas as nurses in the Army Nurse Corps and Navy Nurse Corps. (10) In World War II, women served in the Women's Army Auxiliary Corps (WAAC), in the Navy program Women Accepted for Volunteer Emergency Service (WAVES), in the Marine Corps Women's Reserve and in the Coast Guard Women's Reserve. (11) They served in administrative and support capacities, as nurses, and, in smaller numbers, in up-to-then male-only positions such as air traffic controllers, mechanics, and even pilots, shuttling military aircraft from location to location. (12) All told, more than 400,000 women served in the U.S. Armed Forces during World War II. (13)

Following World War II, women were integrated into the standing armed forces of the United States with the adoption of the Women's Armed Services Integration Act of 1948. (14) Under this statute, women's positions were capped at two percent of the total force, (15) and women were explicitly barred from combat positions. (16) Interestingly, the combat exclusion provisions were not part of the original bill, but were proposed as an amendment by Representative Carl Vinson, a Democrat from Georgia, during a 1947 House Armed Services Committee hearing. (17) Though representatives of the armed services did not particularly seem to support the amendment, (18) once suggested it stuck; though the 1947 bill did not pass, the 1948 bill contained statutory combat exclusions for women in the Navy and Air Force (the Army already had a combat exclusion policy). (19)

In the several decades following the Women's Armed Services Integration Act, the role of women in the military expanded gradually. The combat exclusion's history from this point forward can be viewed in three relatively brief eras. The first runs from the abolition of the draft and transition to an all-volunteer force to the end of the Persian Gulf War; this period is described in Part I.A. below. The second runs from the early years of the Clinton administration to the immediate aftermath of the attacks of September 11, 2001, and is discussed in Part I.B. The final period began with the invasion of Afghanistan in October 2001 and continues to the present day, and is considered in Part I.C.

A. Filling in the Gaps: Expanding Female Enlistment, the Equal Rights Amendment, and the "Risk Rule"

The first period of women's integration into the U.S. military following World War II was characterized by minimal change through the early 1970s, followed by rapid expansion after the abolition of the draft. The two percent cap established by the Women's Armed Services Integration Act was repealed in 1967, but in 1971 women still only accounted for 1.6% of military personnel. (20) In 1973, the military underwent enormous changes with the end of the draft and the transition to an all-volunteer force. (21) As anticipated, male enlistment declined as a result of this change. Out of necessity, as well as in response to societal pressure, the military began to increase its recruitment of women (22) and to expand the positions open to them. By 1976, women comprised 5.2% of the force. (23) Both the removal of the cap, and especially the end of the draft and the recruitment measures that followed, led to an increase in the number of women in the armed forces. Though few changes were made to the combat exclusion statutes and policies during the 1970s, important changes to military personnel policy enhanced the status of women in the services. (24)

Questions of women entering the draft and combat were extensively discussed in this period during the debates over the Equal Rights Amendment (ERA),25 a constitutional amendment which, it was generally agreed on both sides, would require women to register for the draft. (26) In 1980, President Carter also proposed to begin registering women for the Selective Service System. (27) Throughout both the ERA ratification debates and the debates over Carter's proposal, proponents stressed, and opponents disputed, that neither of these changes would require women to undertake combat positions. (28)

The ERA's supporters argued that Congress was still free to ban women from combat under the War Powers Clause. (29) The House's primary sponsor of the Amendment, Representative Martha Griffiths, emphasized that the military would retain its discretion in making troop assignments. Griffiths said, "[T]he draft is equal. That is the thing that is equal. But once you are in the Army you are put where the Army tells you you are going to go. The thing that will happen with women is that they will be the stenographers and telephone operators." (30)

Meanwhile, ERA opponents imagined the Amendment's effects differently. As Phyllis Schlafly, one of the ERA's chief antagonists, put it, "the Equal Rights Amendment will positively make women subject to the draft and for combat duty on an equal basis with men. Most women's libbers admit that this is what they want." (31) At the end of the day, public concerns over female assignment to combat contributed to the ERA's demise.

Still, even after the ERA failed to ratify, women continued to serve in increasingly expanded roles in the military, deploying to three smaller conflicts during the 1980s. First, 170 female Army troops were involved in the 1983 invasion of Grenada. (32) Female troops also assisted in the 1986 air strikes on Libya. (33) Finally, 800 Army women, including two female commanders, participated in the 1989 invasion of Panama. (34)

At the same time, the Department of Defense (DoD) was reassessing its assignment policies. In 1988, the DoD adopted the "Risk Rule," which established a service-wide policy for the assignment of women. It stated: "risks of direct combat, exposure to hostile fire, or capture are proper criteria for closing positions or units to women." Positions could be closed to women where the risks of those positions were "equal to, or greater than, risks for direct combat units or positions with which they are normally in close proximity." (35) The rule was put to the test in the 1991 Persian Gulf War, in which 40,000 female troops were deployed and fifteen were killed. (36) This represented an important turning point in women's involvement in the U.S. military, comparable to the end of the draft in 1973.

After the end of the Persian Gulf War, the question of whether the combat exclusions were either necessary or defensible arose in earnest for the first time since the ERA debates. (37) In the National Defense Authorization Act passed in 1991, Congress repealed the last statutory prohibitions on women serving on combat aircraft. (38) Senators Sam Nunn, John Warner, John McCain, and John Glenn offered an amendment to the Act to create a commission to "assess the laws and policies restricting the assignment of female service members and [to] make findings on such matters." (39) The fifteen-member commission reported its findings and recommendations in 1992. (40) It recommended that women be excluded from ground combat positions and that these exclusions be formally codified. (41) It furthermore recommended that aircraft combat restrictions be reinstated, (42) and then (somewhat idiosyncratically) recommended that Congress repeal the law prohibiting women from serving on naval combat vessels, and that all Navy vessels except submarines be opened to women. (43) Ignoring all but the commission's combat vessel recommendation, in 1993, Congress repealed the final remaining statutory prohibition on women serving on combat ships. (44)

B. Establishment of the Direct Ground Combat Rule

When President Clinton entered office, he appointed Les Aspin to the post of Secretary of Defense. Aspin began to reassess the DoD's assignment policy for women. (45) In 1994, Aspin promulgated the current Department of Defense policy on the assignment of women in the military in a January memorandum. It reads in relevant part:

   Rule. Service members are eligible to be
   assigned to all positions for which they are
   qualified, except that women shall be excluded
   from assignment to units below the brigade
   level whose primary mission is to engage in
   direct combat on the ground, as defined
   below. (46)

The memo also defined "direct ground combat":

   Definition. Direct ground combat is engaging
   an enemy on the ground with individual or
   crew served weapons, while being exposed to
   hostile fire and to a high probability of direct
   physical contact with the hostile force's
   personnel. Direct ground combat takes place
   well forward on the battlefield while locating
   and closing with the enemy to defeat them by
   fire, maneuver, or shock effect. (47)

In addition to the above exclusion, under the policy, women may also be excluded from positions that collocate with direct ground combat units. (48) Thus, the DoD policy (49) imposes significant limits on the positions to which military women can be assigned. Today, approximately eighty percent of positions across the services can be filled by female personnel. 50 However, the policy only applies to assignment, which the DoD defines as a "relatively permanent" placement of units or individuals in an organization, (51) and not to how personnel are utilized once in the theater of operations. (52) Individuals or larger units of troops can also be temporarily reallocated to meet operational needs; one of the most common means of doing this is attachment, or the "[t]he placement of units or personnel in an organization where such placement is relatively temporary." (53)

C. Today: Women Are Serving in Combat

Since the U.S. invasions of Afghanistan and Iraq, attachment has been one of the ways that women have served in combat despite the direct ground combat rule: they have been attached to units to fill manpower shortages as needed, particularly when commanders are confronted with complicated environments in which the battlefield is ill-defined and insurgents are not easily distinguishable from civilians. (54)

There are also certain types of field missions in Iraq and Afghanistan that are more appropriately undertaken by a female soldier. To fight the insurgencies, U.S. forces raid houses and search civilians on credible intelligence of a threat. Since it brings great shame on a woman to be searched by a male soldier or to have male soldiers enter her home when only women are present, teams of female soldiers have been organized to undertake these often-dangerous missions. (55) These include the Marine Corps' Female Engagement Teams, popularly known as "lioness" teams, who can be exposed to hostile fire at any time while "outside the wire" (off of a base). (56) Aside from the diplomatic value of this cultural sensitivity, it has also been observed that the mere presence of female soldiers in these situations often tends to deescalate potential conflict by reducing tension and allowing cooler heads to prevail, thus potentially saving both soldier and civilian casualties. (57)

These more formal attachments are one major source of exposure to combat situations for military women. In addition, the nature of battle in the current conflicts is drastically different from the understanding of the term at the time the assignment policy was drafted. (58) In Iraq and Afghanistan today, battlefields are both non-linear and asymmetrical. A non-linear battlefield is one in which there is no clearly defined front, rear, and flanks. (59) In traditional warfare, armies come up against one another in a geographically confined area in which the front is where most of the fighting happens. The rear is relatively safe, and is where most support operations take place. (60) In this type of battle, it is fairly easy to delineate between occupations and positions that engage in direct ground combat and those that do not, (61) and thus following the DoD assignment policy is reasonably straightforward. Symmetrical force, on the other hand, refers to the defenses the opposition targets and the types of weapons used. "Here, symmetry implies that the enemy would have employed weapons and techniques that were similar to those that the U.S. Military would use." (62)

The wars in Iraq and Afghanistan have involved highly asymmetrical uses of force. (63) "Asymmetrical tactics are those designed by anti-U.S. forces to harm U.S. assets without going up against the 'teeth' of U.S. defenses." (64) Attacks on relatively less-defended convoys, forward operating bases, and civilian targets occur regularly, and this has further blurred the line between "combat" and "combat support." It has been predicted that the type of non-linear, asymmetrical battlefields on which the military has been fighting in Afghanistan and Iraq will be seen regularly in future armed conflicts. (65) This has serious implications with respect to who is exposed to what risks in the theater of operations.

Responding to this situation on the ground in a move that was opposed from the outset by the Pentagon and the White House, Representative Duncan L. Hunter, Chair of the House Armed Services Committee, introduced an amendment to the 2006 National Defense Authorization Act (66) that purported to codify the assignment policy as articulated in the 1994 Aspin Memorandum. (67) In support of the amendment, Representative Hunter said, "The nation should not put women into the front lines of combat. In my judgment, we will cross that line soon unless we make a policy decision.... The American people have never wanted to have women in combat, and this [amendment] reaffirms that policy." (68) The amendment passed the Personnel Subcommittee on a party-line vote. (69)

Committee Democrats criticized the proposed amendment as one that belittled the success of military women in Iraq. (70) The Army Vice Chief of Staff wrote that "It]he proposed amendment will cause confusion in the ranks and will send the wrong signal to the brave young men and women fighting the global war on terrorism. This is not the time to create such confusion." (71)

After just one week, Representative Hunter was forced to back down. Following a meeting with Secretary of Defense Donald Rumsfeld, Hunter agreed to a compromise amendment. (72) The DoD was at that time required to report to Congress at least thirty days before it made any changes to the assignment policy; the new amendment extended this period to sixty days. Otherwise, however, it did not alter the status quo. (73)

The following event illustrates the difficulty of preventing women from entering combat situations in a war marked by nonlinear battlefields and asymmetrical uses of force. Abbie was stationed at Camp Warhorse in Baqubah, a city about 50 kilometers northeast of Baghdad. (74) On the night of the mortar attack that almost killed her and several of her comrades, she had gone to the recreation building to check her email. (75) Camp Warhorse, like other forward operating bases in Iraq, was a regular target of insurgent attacks. (76) Abbie did not even have the opportunity to open a browser before the shell crashed through the wall of the building. Seconds later, another hit, and then another. (77) Over the course of the night, six more mortars were aimed at the base, some directly at the base hospital where she and others who had not been hit were bringing the wounded. (78)

The reality is that women in the United States military are serving in combat today. (79) "We have crossed that line in Iraq," Lt. Colonel Michael A. Baumann stated bluntly. Baumann added that "the military is going to do what the military needs to do. And they are needing to put women in combat." (80) Admiral Mike Mullen, the current Chairman of the Joint Chiefs of Staff, (81) shared a similar view in a recent speech during the Women and War Conference at the United States Institute of Peace:

   In a war where there is no longer a clear
   delineation between the frontlines and the
   sidelines, where the war can come at you from
   any direction.... This will be the first
   generation of veterans where large segments of
   women returning will have been exposed to
   some form of combat, And I know what the
   law says and I know what it requires. But I'd
   be hard pressed to say that any woman who
   serves in Afghanistan today or who's served in
   Iraq over the last few years did so without
   facing the same risks of their male
   counterparts. (82)

Casualty and decoration statistics bear further witness to these on-the, ground observations. As of February 28, 2011, 137 women have been killed in Iraq and Afghanistan, (83) and another 751 have been wounded. (84) Among female veterans, 8454 have been diagnosed with post-traumatic stress disorder ("PTSD"), representing a rate of PTSD among women veterans approximately equal to their male counterparts. (85) As of August 2006, 1788 women have been awarded the Combat Action Badge (CAB) for service in Iraq or Afghanistan. (86) The CAB, an Army decoration, is awarded to a member of any branch of the armed forces who is: "performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized," and is "personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement." (87) Meanwhile, the direct ground combat exclusion policy remains in place. Practically speaking, this means that although women may actually be serving and leading troops in combat, evidence of this combat service does not appear in their personnel files, because, "officially," women cannot be assigned to ground combat units. (88) This raises serious questions about whether it is acceptable not to share the benefits of combat assignment, especially when many women in the military are undertaking its burdens. This Article will return to the question of what benefits arise from assignment to a combat unit in Part III.

II. Rationales for and Criticisms of the Combat Exclusion

As discussed in Part I, women have been excluded from combat by law or policy since the role of women in the U.S. military was formalized more than seventy years ago. Gradual changes have tended to occur in response to pragmatic concerns. Each time conditions on the ground have ushered in such changes, however, voices from across the political spectrum have offered opinions on the prudence and consequences of the proposed new order as compared with the status quo. This section first summarizes the debate and then considers its effect.

A. The Debate: Is the Combat Exclusion Policy Objectively Justifiable?

It is worth taking a moment to discover if, despite the events of the most recent wars, the current DoD assignment policy excluding women from direct combat is defensible. Whether there are legitimate rationales for the DoD's assignment policy is an important element of the larger question of whether the policy should stand at all. These rationales must not stereotype based on traditional notions of appropriate roles for men and women and must not lump all members of one gender into a category based on "loose-fitting generalities" about members of the group. (89)

The policy …

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Publication information: Article title: Equal Pay for Equal Work? - the Distributional Effects of the Assignment Policy for Military Women. Contributors: Dieckmann, Christina M. - Author. Journal title: Columbia Journal of Gender and Law. Volume: 22. Issue: 1 Publication date: Winter 2011. Page number: 250+. © 2008 Columbia Journal of Gender and Law. COPYRIGHT 2011 Gale Group.

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