By Courtney Bohl, Christopher DeGroff, and Reema Kapur
On July 11, 2013, U.S. Senator Richard Blumenthal (D-Conn.) and U.S. Representative Derek Kilmer (D-Wash.) introduced the Veterans and Servicemembers Employment Rights and Housing Act of 2013. The bill seeks to prohibit discrimination against veterans and servicemembers seeking employment or housing opportunities. If adopted, the bill would amend the Fair Housing Act to include military service as a protected category and allow veterans and servicemembers facing discrimination to file their complaints with the Equal Employment Opportunity Commission. Representative Kilmer previously sponsored a similar law.
These developments are significant. Indeed, the Equal Employment Opportunity Commission is already focused on veterans issues. For example, as early as November 16, 2011, the Commission convened a meeting to discuss barriers to employment for veterans. Following that meeting, the Commission issued a guide for employers in connection with recruiting, hiring, and accommodating veterans with disabilities. Regardless of whether military service is ultimately recognized as a protected category under federal law, employers must be aware that veterans as a group may fall squarely within one or more of the Commission’s national enforcement priorities set out in its 2013-2016 Strategic Enforcement Plan, including protecting what it considers “vulnerable populations” and eliminating barriers in recruitment and hiring.
Summary Of The Proposed Bill
Currently, in the employment setting, veterans and servicemembers are protected under two federal statutes: indirectly under the Americans With Disabilities Act (“ADA”), which protects servicemembers against discrimination on the basis of any disability whether arising from military service or not, and directly under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), requiring employers to reinstate servicemembers to the civilian jobs that they left for active military service. The USERRA also gives preference to servicemembers for federal government employment. These two statutes, however, do not provide comprehensive protection for servicemembers based on military service. The Veterans and Servicemembers Employment Rights and Housing Act of 2013 (“Proposed Bill”) seeks to fill this gap.
Key provisions of the Proposed Bill include:
- It would apply to both public and private employers and would make it unlawful to refuse to hire, discharge or otherwise discriminate against any individual on the basis of the individual’s military service.
- It would protect against retaliation any servicemember who brings a charge alleging discrimination on the basis of military service or who assists in an investigation regarding the same.
- It would allow both intentional discrimination and disparate impact claims. Notably, with respect to intentional discrimination claims, based on the current language of the Proposed Bill, servicemembers would not be required to prove that their military service was a “but for” cause of any adverse action, rather they would show that it was a “motivating factor,” even if other factors also motivated the action.
- It would not place an affirmative obligation on employers to hire veterans or servicemembers, and it would not allow an individual without military service to bring a reverse discrimination claim.
- It contemplates important exceptions. The seniority or merit exception authorizes an employer to implement a bona fide seniority and merit system, even if this results in different terms and conditions of employment for servicemembers, so long as any differences are not the result of an intention to discriminate on the basis of military service. Additionally, the national security exception authorizes an employer to refuse to hire or employ a servicemember if it is in the interest of national security.
Is Legislation Necessary?
The impetus behind the Proposed Bill is federal lawmakers’ concerns regarding the difficulties returning servicemember’s face when transitioning back to civilian life. They explain that a successful transition often depends on veterans securing gainful employment. Yet, according to statements issued by Senator Blumenthal and Representative Kilmer, employment remains elusive for many veterans. According to the U.S. Department of Labor, the unemployment rate for veterans generally averages about 12% – three percentage points higher than the general population. Further, the U.S. Department of Defense notes that nearly two-thirds of unemployed veterans are between 35 and 60 years old. Finally, proponents of the Proposed Bill rely on a 2012 Center for a New American Security study that reportedly found that over 50 percent of interviewed employers cited “negative stereotype” as a reason why they might not hire a veteran.
Implications For Employers
Considering the increasing focus on veterans’ issues within the Obama Administration, in Congress, and among federal agencies, including the EEOC, employers must remain vigilant in this area. If this or similar bills become federal law, employers may have vulnerability to litigation if, for example, they do not take adequate measures to segregate recruiting materials referring to the military status of applicants or employees from general hiring materials and personnel files. Employers should consider revisiting their policies and practices concerning information they collect regarding applicants’ and employees’ military status, the individuals who may have access to this type of information, and how the information may be used during the course of employment. The bill has been referred to the Committee on Education and the Workforce. We will continue to track its progress.