2019] SEXUAL HARASSMENT SUITS UNDER THE FERES DOCTRINE 857
were reported for sexual harassment.2 Furthermore, 88% “of substantiated
incidents occurred on duty.”3 Congress created Title VII to help victims of
sexual harassment and other forms of discrimination obtain relief in the
corporate context.4 However, most people do not realize that the Supreme
Court intervened in Title VII’s application to the military and held that the
Feres Doctrine bars service members from recovering if their injury5 is
“incidental to service,”6 which means the Feres Doctrine will bar any civil claims
sexually harassed service members try to bring against the military.7
Within the military, the Feres Doctrine prevents service members from
suing for injuries “where the injuries arise out of or are in the course of activity
incident to service.”8 Loosely based on the Federal Tort Claims Act (“FTCA”),
the Feres Doctrine started as an effort to keep civilians from interfering with
military decisions and prevent service members from obtaining a double
recovery under what is now known as the Veterans’ Benefits Act (“VBA”) and
through a civil suit;9 however, the circuit courts have gradually expanded the
doctrine to bar an array of claims, from recreational activities10 to intentional
2. Id. at 2.
4. See 42 U.S.C. § 2000e–2 (2012) (prohibiting employment discrimination based on an
“individual’s race, color, religion, sex, or national origin”).
5. Traditionally, courts have considered cases dealing with physical injuries. See generally
Feres v. United States, 340 U.S. 135 (1950) (analyzing three cases which led to the creation of
the Feres Doctrine). However, lower courts have also barred individuals from suing for non-
physical injuries, such as sexual harassment or intentional infliction of emotional distress
(“IIED”). See, e.g., Mackey v. United States, 226 F.3d 773, 776–77 (6th Cir. 2000) (holding that
Feres Doctrine barred plaintiff any chance of recovering for sexual harassment claim).
6. Rachel Natelson, The Unfairness of the Feres Doctrine, TIME (Feb. 25, 2013), http://
nation.time.com/2013/02/25/the-unfairness-of-the-feres-doctrine (“[T]he ‘incident to service’
provision routinely cited as an impediment best fixed by Congress is nowhere to be found in
federal statute, making legislative reform something of an existential puzzle.”).
9. 38 U.S.C. ch. 12 (1950) (codified as amended at 38 U.S.C. Part II (2012)); Feres, 340
U.S. at 143–44 (describing the Court’s concerns that people may obtain a double recovery and
the uniquely federal nature of service member’s claims).
10. See, e.g., McConnell v. United States, 478 F.3d 1092, 1098 (9th Cir. 2007) (describing
how the Feres doctrine barred the service member’s claim for an injury sustained while using a
government owned motorboat). The court stressed “we remain constrained to follow our ‘well-
worn path’ of interpreting the Feres doctrine ‘to include military-sponsored recreational
programs.’” Id. (quoting Costo v. United States, 248 F.3d 863, 869 (9th Cir. 2001)); see also Walls
v. United States, 832 F.2d 93
, 94–95 (7th Cir. 1987) (explaining that the Feres doctrine barred
the service member’s claim because the airplane which crashed was owned by the rec reational
Aero Club thus making the sustained injuries incidental to the line of duty); Hass ex rel. United
States v. United States, 518 F.2d 1138
, 1141 (4th Cir. 1975) (stating that the Feres doctrine barred
the service member’s claim because the hors e-riding injury stemmed from renting a horse from
the Marine-Corps operated stables). The court noted that the “[r]ecreational activity provided by
the military can reinforce both morale and health and thus serve the overall military purpose.” Id.