Commentary

Veterans employment discrimination guidance updated

On Nov. 27, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) provided new guidance related to the employment discrimination challenges that face our nation’s veterans. More specifically, the EEOC issued three revised documents that address how the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) apply to veteran employees and those employing them.

The updated guidance is especially important because post-9/11 veterans have suffered from higher unemployment than other veterans and civilians. Scholars and political leaders have acknowledged that the terrorist attacks on Sept. 11, 2001, and the protracted wars in Iraq and Afghanistan have put many veterans in a perilous employment situation. First, and most notably, U.S. Reserve and National Guard members must balance civilian employment with their military obligations, including combat deployments. Achieving this balance is particularly challenging when veterans face mental health treatment for afflictions such as post-traumatic stress disorder. Second, civilian employers can often be insensitive or downright hostile to their veteran employees’ wartime experiences. Third, stereotyping frequently occurs when veterans are perceived as “damaged” from their wartime experiences. Popular culture reflects and reinforces this stereotype by regularly portraying veterans as broken and unstable in movies and television shows.

Fortunately, there are a few key laws designed to protect veterans against employment discrimination, most notably USERRA and ADA. Under USERRA, it is unlawful for employers to discriminate against service members based on their military service. USERRA expressly forbids retaliatory and related adverse discriminatory actions based on military status. USERRA is enforced by the U.S. Department of Labor and the U.S. Department of Justice. The ADA, a law enforced by the EEOC, prohibits an employer from treating an applicant or employee unfavorably in all aspects of employment because the individual has a disability, a history of having a disability, or because the employer regards the individual as having a disability.

Some of the key takeaways from the EEOC’s recent guidance include:

• Any veteran with a disability who meets the ADA’s definition is covered, regardless of whether the veteran’s disability is service-connected;

• If a veteran has a military disability rating or disability rating from the U.S. Department of Veterans Affairs, the veteran is probably covered by the ADA;

• A veteran may request a variety of reasonable accommodations for the application process or on the job, including modified equipment or devices, physical modifications to the workplace, and leave for treatment, recuperation, or training related to the veteran’s disability;

• After requesting a reasonable accommodation, the veteran and employer will engage in an informal interactive process to determine whether the veteran has a disability as defined by the ADA (when this is not obvious or already known) and identify accommodation solutions;

• The ADA does not require veterans to disclose that they have any medical condition on a job application or during an interview; and

• What veterans can do if they feel that an employer has violated the ADA by not hiring them or providing a reasonable accommodation.

Even though we have strong laws like ADA and USERRA to protect veterans against employment discrimination, the EEOC’s recent guidance underscores the importance of engaging in targeted outreach to ensure that veterans know about these laws and how to seek enforcement. Likewise, the guidance stresses that employers should understand how veteran antidiscrimination laws apply. Veterans should know that the EEOC has designated staff in offices across the country to assist veterans who may be facing disability discrimination. The EEOC’s updated guidance is certainly a positive step forward even though more must be done.

Bradford J. Kelley is chief counsel to Equal Employment Opportunity Commission (EEOC) Commissioner Keith E. Sonderling. Before becoming an attorney, Bradford was a U.S. Army infantry and intelligence officer; he is also a veteran of the Iraq War.

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