What protections are afforded on the basis of veteran status or military service?

The primary laws prohibiting employment discrimination on the basis of veteran status or military service is Uniformed Services Employment and Reemployment Rights Act of 1994. Other laws that bar discrimination in employment because of veteran status or military service are:

• Vietnam Era Veterans' Readjustment Assistance Act of 1974
• State Laws.

Who does the law protect? Employment discrimination because of past, current, or future military obligations is prohibited by the Uniformed Services Employment and Reemployment Rights Act of 1994. A person is protected from service-connected discrimination under USERRA if the person:

• served in the past in a uniformed service and was separated from such service under honorable conditions;
• currently is a member of or is currently serving in a uniformed service;
• has an obligation to serve in a uniformed service; or
• is an applicant for membership in the uniformed services.

The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) requires that certain federal contractors and subcontractors take affirmative action to employ and advance in employment:

• qualified special disabled veterans,
• veterans of the Vietnam era,
• recently separated veterans (within one year), and
• other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.

Qualified special disabled veteran. A person is a "special disabled veteran" if:

the person is entitled to disability compensation (or but for the receipt of military retirement pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability rated at 30 percent or higher;

• the person has been determined to have a serious employment handicap and is entitled to disability compensation (or but for the receipt of military retirement pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability rated at 10 or 20 percent;
• the person was discharged or released from active duty because of a service- connected disability (38 USC 4211(1)).

A special disabled veteran is "qualified" if:

• the special disabled veteran is qualified to perform a particular job with reasonable accommodation to his or her disability (41 CFR 60-250.2(o)).

Veteran of the Vietnam era. A persons is a "veteran of the Vietnam era" if:

• a person who served on active duty for more than 180 days, some of which was performed in the Republic of Vietnam between February 28, 1961, and May 7, 1975, and who was discharged or released with other than a dishonorable discharge;
• a person who served on active duty for more than 180 days, some of which was performed between August 5, 1964 and May 7, 1975, in an area other than the Republic of Vietnam, and who was discharged or released with other than a dishonorable discharge;
• a person who was discharged or released from active duty because of a service- connected disability if any part of that active duty was performed in the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
• a person who was discharged or released from active duty because of a service- connected disability if any part of that active duty was performed in an area other than the Republic of Vietnam between August 5, 1964 and May 7, 1975 (38 USC 101(29), 4211(2), and 4211(4); 41 CFR 60-250.2(p)).

Other eligible veteran. The general category of Other Eligible Veterans includes two key veterans groups:

• veterans who served during a war, and
• those who served on active duty in a campaign or expedition for which a campaign badge has been authorized.

What does the law require? In addition to conferring military leave and reemployment rights, USERRA contains a broad ban on employment discrimination because of past, current, or future military obligations. VEVRAA requires that certain federal contractors and subcontractors take affirmative action to employ and advance in employment certain veterans, and prepare and maintain an affirmative action program (41 CFR 60-250.40).

Is protection from service-connected discrimination dependent upon reemployment eligibility? The protection from discrimination is completely separate from the right provided under USERRA for reemployment for eligible persons following military service. Consequently, reemployment eligibility is not a prerequisite to discrimination protection.

Are temporary employees protected from service-connected discrimination? Although reemployment rights under USERRA do not extend to persons whose employment with an employer is for a brief, non-recurrent period, such persons are still protected by USERRA's discrimination ban.

What if a connection to service is just one reason for an employer's decision? If an individual's past, present, or future connection with a uniformed service is a motivating factor in an employer's adverse employment action against that individual, the employer has violated USERRA. To avoid liability, the employer must prove that it would have taken the same action regardless of the individual's connection with the service.

Can veterans' preferences be challenged by non-veterans under Title VII? The federal government and virtually all of the states grant some form of employment preference to veterans. The courts and the Equal Employment Opportunity Commission are in agreement that, despite their potential for adversely affecting the employment opportunities of non-veterans, particularly of women, veterans' preferences accorded pursuant to statute are not subject to challenge under Title VII. This is so because of an exception provided in Section 712 of the Act, which expressly states that nothing in Title VII shall obviate any federal, state, territorial or local law creating special rights or preference for veterans.

Where an employment preference is conferred upon veterans on an employer's own initiative and is not mandated by statute, the discriminatory impact of the preference is not shielded from scrutiny under Title VII. The EEOC takes the position that voluntarily adopted veterans' preferences adversely affect women, creating a rebuttable presumption of adverse impact.

Don't forget state laws. Be sure to check State Laws for the Fair Employment Practice laws that apply in your state(s).