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Veterans and Employment Discrimination, ADA and USERRA

When military personnel return from serving their country overseas, they face unique challenges in the civilian workplace. Employers may be reluctant to hire a reservist or guardsman out of fear that he or she may be re-deployed to active duty service. Our combat veterans come back with PTSD, missing limbs, burns, spinal cord injuries, TBI, hearing loss, and other impairments. Employers may not want to hire these "disabled" veterans. Several federal laws provide key workplace protections for our returning servicemembers.

Title I of the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) protect veterans from employment discrimination. The ADA, through enforcement by the U.S. Equal Employment Opportunity Commission (EEOC), prohibits private and state and local government employers with 15 or more employees from discriminating against individuals on the basis of disability. USERRA on the other hand , through enforcement by the U.S. Department of Labor (DOL) guarantees certain employment and re-employment rights for veterans regardless of disability. The following briefly summarizes these two laws:

1. The ADA provides certain protections to veterans with disabilities

The ADA prohibits an employer from treating an applicant or employee unfavorably in all aspects of employment -- including hiring, promotions, job assignments, training, termination, and any other terms, conditions, and privileges of employment -- because he has a disability, a history of having a disability, or because the employer regards him as having a disability. The employer cannot, for example, refuse to hire a veteran because he has PTSD, was previously diagnosed with PTSD, or because the employer assumes he has PTSD. Nor can an employer refuse to hire a veteran simply because he has a disability rating from the U.S. Department of Veterans Affairs (VA).

The ADA also provides that, absent undue hardship ("significant difficulty or expense"), applicants and employees with disabilities are entitled to reasonable accommodation to apply for jobs, to perform their jobs, and to enjoy equal benefits and privileges of employment. Section 501 of the Rehabilitation Act applies the same standards of non-discrimination and reasonable accommodation as the ADA to Federal Executive Branch agencies and the United States Postal Service. Finally, an employer is also limited in the medical information he or she can obtain on a disabled veteran, and the law prohibits disability-based harassment and retaliation.

2. A veteran's service-connected disability may be protected by the ADA

If a veteran's service connected disability meets the ADA definition of a disability, he is protected. The ADA defines an "individual with a disability" as a person who (1) has a physical or mental impairment that substantially limits one or more "major life activities"; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 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. The term "major life activities" includes not only activities such as walking, seeing, hearing, and concentrating, but also the operation of major bodily functions, such as functions of the brain and the neurological system. Many service-connected disabilities will meet the ADA "disability" definition.

3. An employer may ask applicants to voluntarily self-identify as a "disabled veteran"

An employer typically may not ask a veteran if he is disabled. However, an employer may ask an applicant to self identify as a disabled veteran when the employer is undertaking affirmative action because of a federal, state, or local law, or voluntarily is using the information to benefit individuals with disabilities. Also, an employer also may ask organizations that help find employment for veterans with disabilities whether they have suitable applicants for particular jobs and may access websites on which veterans with disabilities post resumes or otherwise express interest in employment.

When asking the applicant, the employer must clearly state on the form that the information is being used only for affirmative action purposes, that the information is being requested on a voluntary basis and will be kept confidential, and that an applicant will not suffer any adverse treatment if he or she refuses to answer the question.

4. Disabled Veterans are given special considerations with federal agencies

The Veterans' Preference Act gives some preference to veterans with and without disabilities over others in hiring from competitive lists of eligibles and may be considered for special noncompetitive appointments for which they are eligible. Federal agencies also may use specific rules and regulations, called "special hiring authorities," to hire individuals with disabilities outside the normal competitive hiring process, and sometimes are even required to give preferential treatment to veterans, including disabled veterans, in making hiring decisions. For example, the Veterans' Recruitment Appointment (VRA) program allows agencies to appoint eligible veterans without competition. The Veterans Employment Opportunity Act (VEOA) can be used when filling permanent, competitive service positions; it allows veterans to apply for jobs that are only open to "status" candidates, which means "current competitive service employees". The Schedule A Appointment Authority, though not specifically for veterans, allows agencies to appoint eligible applicants who have a severe, physical, psychological, or intellectual disability.

6. A private employer may give preference in hiring to a disabled veteran.

While the ADA prohibits discrimination on the basis of disability,it does not prevent private employers from engaging in affirmative action on behalf of individuals with disabilities. Also, the Vietnam Era Veteran's Readjustment Assistance Act (VEVRAA) requires that businesses with a federal contract or subcontract in the amount of $100,000 or more, entered into on or after December 1, 2003, take affirmative action to employ and advance qualified disabled veterans.

7. Employers must take specific steps for disabled veterans in recruiting and hiring

The ADA requires employers to ensure that online job announcements, recruiting information, and application processes are accessible to individuals with disabilities, including applicants who have service-connected disabilities. In addition, federal employers must (1) state on job advertisements or vacancy announcements that it is an equal opportunity employer and that individuals with disabilities, including "disabled veterans" or veterans with service-connected disabilities, "are encouraged to apply"; (2) make written recruiting materials, such as application forms and brochures, available in alternate formats (e.g., Braille, large print, etc.), or assist veterans with disabilities in completing application materials when necessary; (3) send vacancy announcements to, and ask for referrals from, government, community, military organizations, and One Stop Career Centers that train and/or support veterans with disabilities; (4) post advertisements and vacancy announcements in publications for veterans; (5) attend job fairs and use online resume databases that connect job-seeking veterans with civilian employers; (6) survey other employers to learn about their successful outreach efforts

8. Reasonable accommodations must be provided to disabled veterans during the application process or during employment

The EEOC outlines examples of situations where a disabled veteran may need an accommodation in the application or employment context. They include (1) written materials in accessible formats, such as large print, Braille, or on computer disk; (2) holding recruitment fairs, interviews, tests, and training in accessible locations; (3) modifying equipment or devices; providing a glare guard for a computer monitor used by a person with a traumatic brain injury; providing a one-handed keyboard for a person missing an arm or hand; (4) physical modifications to the workplace (e.g., reconfiguring a workspace, including adjusting the height of a desk or shelves for a person in a wheelchair); (5) granting permission to work from home; (6) leaving for treatment, recuperation, or training related to their disability; modifying part-time work schedules; (7) providing a job coach who could assist an employee who initially has some difficulty learning or remembering job tasks; (8) modifiying supervisory methods, which may include breaking complex assignments into smaller, separate tasks, adjusting methods of communication (e.g., giving instructions in writing rather than orally), or providing some additional feedback or guidance; (9) and reassigning a disabled veteran to a vacant position where a disability prevents performance of the employee's current job, or where accommodating the employee in the current job would result in undue hardship

9. USERRA differs from the ADA

USERRA prohibits employers from discriminating against employees or applicants for employment on the basis of their military status or military obligations. It also protects the reemployment rights of individuals who leave their civilian jobs (whether voluntarily or involuntarily) to serve in the uniformed services, including the U.S. Reserve forces and state, District of Columbia, and territory (e.g., Guam) National Guards. Both USERRA and the ADA require employers to make certain adjustments for veterans with disabilities called "reasonable accommodations." However, USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment to become qualified for a job whether or not the veteran has a service-connected disability. This could include providing training or retraining for the position. USERRA also applies to all employers, regardless of size.

Contact an attorney at the California Veterans Rights Center for a complimentary consultation should you believe you are being discriminated against in violation of the ADA or USERRA.