With Memorial Day coming up this weekend, it’s often a time (or it ought to be a time) to reflect on the sacrifices made by our military. And at the same time, consider how we, as a society, treat our veterans.
This issue was highlighted for me many years ago. During a court proceeding in which fraudulent behavior of the witness was being discussed, the witness brought up his past military service, perhaps as a way to seek leniency from the court.
To my surprise, rather than dismiss the comment as outright pandering to the court, the judge took a few minutes to express appreciation to the witness for his service and to note that the judicial system should be sensitive to the needs of veterans.
The court didn’t rule in favor of the witness but I was still struck by the judge’s sensitivity. It was a learning moment for me that all of us involved in the legal system ought to treat veterans in a similar way — with, at a minimum, recognition for their service and respect. It didn’t matter at that time whether the veteran was honorably discharged or not; it was their service that mattered.
It is with that background in mind that employers should consider the new guidance from the Commission on Human Rights and Opportunities (CHRO) entitled “Guide to the Nondiscrimination in Hiring and Employing Connecticut Veterans”.
In it, the CHRO reminds us that employment discrimination on the basis of “status as a veteran” became illegal effective October 1, 2017.
And what is a “veteran”? Anyone who served? Actually no.
According to the statute, “veteran” means “any person honorably discharged from, or released under honorable conditions from active service in, the armed forces.”
Thus, by its own terms, employers cannot discriminate against veterans who received an “honorable discharge” or a discharge “under honorable conditions”.
But the CHRO guidance addresses whether employers can make hiring decisions regarding veterans who have received discharges under the three other primary designations: “other-than-honorable discharge, bad conduct discharge, and dishonorable discharge.”
The CHRO calls these designations (along with the discharge under honorable conditions) as “less-than-honorable” or “bad paper” discharges.
The CHRO’s guidance suggests that discrimination against someone who received these “bad paper” discharges might also violate the law because of their “disparate impact on veterans of color, LGBT veterans, and veterans with disabilities”.
Thus, the CHRO opines, “reliance on discharge status” may still violate Connecticut’s anti-discrimination laws.
What’s the proposed solution from the CHRO? Several suggestions are offered:
- “Provide individualized consideration to veterans with less-than-honorable discharges. This means you should consider the nature of the discharge (i.e. why the veteran was discharged—was it for a minor infraction or because of behaviors related to a mental health condition?), the time elapsed since the discharge, the nature of the positions sought and how the discharge is in any way related to the position the veteran is applying for.
- Second, you should provide the veteran-applicant the opportunity to present her case for why the discharge should not be factored into your hiring decision. You might also consider the presence of mitigating circumstances like PTSD if the veteran discloses them to you.
- Additionally, for those service members who were discharged due to conduct arising from a disability like PTSD, you have an independent obligation under both state and federal law to provide “reasonable accommodations” such as making the physical work environment accessible or providing a flexible work schedule.
- Finally, if you contract with a consumer reporting agency such as HireRight or TransUnion to conduct background checks and your background check results in the discovery of information about an individual’s discharge status, you are required under the Fair Credit Reporting Act to provide notice to the veteran applicant prior to taking any adverse action….”
The CHRO’s guidance here is reminiscent of guidance issued by the EEOC in the early 2010s regarding the use of criminal background checks and the potential for a racial disparate impact.
At the time, some argued that the agency overstepped its authority because there was nothing that outright prohibited the use of such checks under the law and the reach to “disparate impact” was a step too far.
One could make a similar argument here that the CHRO’s suggestion that discrimination against veterans of all types of discharges might also be covered — after a new law that was passed that prohibited discrimination against only those veterans those who received honorable discharges — might be deemed to be overreach. The legislature only sought fit to protect veterans with honorable discharges; why can’t employers consider those with “bad paper” discharges as a factor in their hiring decisions?
I’ll leave that for the policy-makers to debate.
For employers, the takeaway should be that the CHRO will be looking at discrimination against veterans who received so-called “bad paper” discharges more closely. While the law may not outright prohibit it, the CHRO will be looking at whether the employer’s decisions might have a disparate impact on a protected class.
And for employers, making individualized determinations on an applicant based on the applicant’s overall fit and qualifications for the position isn’t a bad practice anyways.