Veteran’s Day always reminds me of my grandparents, who fought in World War II, and other family members who are, or have been, in the military. It also reminds me that California and federal law prohibit harassment and discrimination of employees because of their veteran or military status. Cal. Gov’t Code §12940 et seq. (Fair Employment and Housing Act or “FEHA”); Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). I hope employers and employees remember these protections and their rights.
The FEHA, which applies to employers with five or more employees, prohibits harassment and discrimination based on veteran or military status. The USERRA prohibits discriminatory employment practices by private or public employers of any size because of an individual’s past, current or future military status, service or obligation. It also protects reemployment rights of individuals, who left their civilian jobs to serve in the uniformed services.
Because many veterans return from service injured physically or mentally, some employers are reluctant to hire them. Veterans, such as these, may have protections under the FEHA or the American with Disabilities Act (“ADA”) 42 USCS § 12111 et seq.. The FEHA prohibits employers with five or more employees from harassing and discriminating against employees on the basis of a disability. The ADA prohibits private employers with fifteen or more employees; state, local and federal governments; employment agencies and labor unions from discriminating against "qualified" individuals with disabilities in aspects of employment. This includes job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. If the employee has a physical or mental impairment that substantially limits how the employee performs a major life activity, and has a record of, or is regarded as, having an impairment, he would be considered disabled.
An individual with a disability is “qualified” if he is able to meet an employer's requirements for the job, such as education, training, employment experience, skills, or licenses, and is able to perform the job's essential or fundamental duties with or without reasonable accommodation. Typical examples of discrimination against a disabled veteran include if an employer fails to hire or promote a veteran, who was diagnosed with PTSD.
Identification as a Disabled Veteran
Veterans have more rights and protections in applying for jobs. Employers can ask whether an applicant is a disabled veteran for affirmative action purposes. However, they cannot ask for an applicant's medical information. If employers ask applicants to identify themselves as disabled veterans, they must state clearly that (1) they asked for this identification only for affirmative action purposes; and (2) the requested identification is voluntary, it will be kept confidential, refusal to provide it will not subject the applicant to adverse treatment, and it will only be used in accordance with the ADA. This information must be kept separate from the application to ensure its confidentiality.
Under the ADA, if a disabled veteran requests a reasonable accommodation, like an adjustment to a schedule or duties at work because of a service related injury, the employer must engage in an interactive process to try to accommodate the disabled veteran. The USERRA requires the employer to make reasonable efforts to help qualify the veteran for a job of equivalent seniority, status and pay, which the disabled veteran is qualified or could become qualified to perform.
We should be thanking veterans for their service to the country every day by making sure they don’t experience discrimination at work and that their disabilities are reasonably accommodated as provided under the law.