Veterans employment discrimination steering up to date

On November 27, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance on the workplace discrimination challenges facing our nation’s veterans. Specifically, the EEOC has issued three revised documents that outline how the Disabled Americans Act (ADA) and the Uniformed Services Work and Re-Employment Rights Act (USERRA) apply to experienced workers and their employees.

The updated guidelines are particularly important as post September 11th veterans have experienced higher unemployment rates than other veterans and civilians. Scientists and political leaders have recognized that the terrorist attacks of September 11, 2001 and the protracted wars in Iraq and Afghanistan placed many veterans in dangerous employment situations. First and foremost, members of the U.S. Reserve and National Guard must reconcile civilian employment with their military obligations, including combat missions. Achieving this balance is especially difficult when veterans are undergoing mental health treatment for conditions such as post-traumatic stress disorder. Second, civil employers can often be insensitive or downright hostile to the war experiences of their experienced employees. Third, stereotyping often occurs when veterans are perceived as “damaged” because of their wartime experiences. Popular culture reflects and reinforces this stereotype by regularly portraying veterans as broken and unstable in movies and TV shows.

Fortunately, there are a few important laws in place to protect veterans from discrimination in the workplace, particularly USERRA and ADA. According to USERRA, it is illegal for employers to discriminate against service members on the basis of their military service. USERRA expressly prohibits retaliation and associated disadvantageous discriminatory measures based on military status. USERRA is enforced by the US Department of Labor and the US Department of Justice. ADA, a law enforced by the EEOC, prohibits an employer from treating an applicant or worker unfavorably in any aspect of employment because the person is disabled, has had a disability in the past, or because the employer considers the person to be disabled.

Some of the key lessons learned from the EEOC’s most recent guidance are:

• Any veteran with a disability who meets the ADA definition is insured regardless of whether the veteran’s disability is related to the service.

• If a veteran has a military disability or a US Department of Veterans Affairs disability, the veteran is likely covered by the ADA.

• A veteran may request a variety of reasonable arrangements for the application process or for work, including modified equipment or appliances, physical modifications in the workplace, and leave for treatment, recreation, or training related to the veteran’s disability.

• After applying for reasonable accommodation, the veteran and the employer conduct an informal interactive process to determine if the veteran has a disability as defined by the ADA (if not obvious or already known) and to provide solutions for the placement determine.

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• The ADA does not require veterans to state that they have an illness on an application or during an interview. and

• What veterans can do if they feel an employer has violated the ADA by not hiring them or providing adequate housing.

While we have tough laws like ADA and USERRA to protect veterans from discrimination in the workplace, the EEOC’s recent guidance underscores the importance of targeted contact to ensure veterans are aware of these laws and how they are enforced can. The guidelines also emphasize that employers should understand how anti-discrimination laws apply to veterans. Veterans should know that the EEOC has appointed staff in offices across the country to assist veterans who may face discrimination based on disability. The EEOC’s updated guidelines are certainly a positive step forward, even if more needs to be done.

Bradford J. Kelley is Chief Counsel to Keith E. Sonderling, Commissioner of the Equal Employment Opportunity Commission (EEOC). Before Bradford became a lawyer, he was an infantry and intelligence officer in the U.S. Army. He is also a veteran of the Iraq war.

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