Veteran Discrimination in Employment

Authored By: Lagniappe Law Lab

About

What is Veteran Discrimination?

The right of employees to be free from discrimination based on status as a veteran is protected under the law. One form of veteran discrimination occurs when a veteran cannot get employment due to veteran status or disability; sometimes also called veteran status discrimination. Three primary federal laws that deal with veteran discrimination can help veterans, including those with a service related disability, with employment discrimination issues.

The law against veteran discrimination - due to veteran status or disability - includes all aspects of employment. This includes hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.

Retaliation

  • It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability as a veteran or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

Harassment  

  • Harassment can include, for example, offensive or derogatory remarks about a veteran. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

  • The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

ADA

What is Veteran Discrimination in Title I of the Americans with Disabilities Act (ADA)?

What individual rights does the ADA provide for Veterans?

Any person with a disability, including previously military service members, cannot be treated unfavorably because of the disability in any aspect of employment. 

Title I of The Americans with Disabilities Act (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 or she has a disability, a history of having a disability, or because the employer regards him as having a disability.

  • An employer may not refuse to hire a veteran based on assumptions about a veteran's ability to do a job in light of the fact that the veteran has a disability rating from the U.S. Department of Veterans Affairs (VA)
  • Whether veteran or not, anyone with a disability is entitled to reasonable accommodations at work, barring significant difficulty or expense to the employer, reasonable accommodations that allow a person with disabilities to perform a role they are otherwise capable of performing are rights under the ADA.

  • An employer cannot refuse to hire a person with disabilities because you require a reasonable accommodation to enact the job’s duties. The ADA provides that, absent undue hardship (significant difficulty or expense to the employer), applicants and employees with disabilities are entitled to reasonable accommodation to apply for jobs, perform their jobs, and enjoy equal benefits and privileges of employment (e.g., access to the parts of an employer's facility available to all employees and access to employer-sponsored training and social events).

  • The ADA limits the medical information employers may obtain.

  • Employers are not allowed to ask about a candidate’s disabilities, even when they are apparent, during a job interview or otherwise. An employer can ask if and what kind of reasonable accommodations an employee needs. However, they can inquire about a specific disability or condition. For example, it is illegal for an employer to refuse to hire a veteran because the veteran has PTSD or was previously diagnosed with PTSD, or because the employer assumes the veteran he has PTSD.

  • People with disabilities are not required to disclose their condition during the pre-employment process. Although, if someone has a disability that requires accommodation they should discuss said accommodation early with the potential employer. At the time of an offer, employers can exercise their right to pre-employment medical screenings or questions about medical conditions provided that everyone has to onboard with the same process.

  • Once a veteran with a disability has started working, an employer may ask whether an accommodation is needed when it reasonably appears that the person is experiencing workplace problems because of a medical condition.

  • Many veterans may not view their service-related injuries as disabilities, they may not ask, or know that they are entitled to ask, for a reasonable accommodation. As a result, it may be critical for the employer to initiate a conversation with a veteran who is experiencing problems to determine an appropriate accommodation. Working together, the employer and veteran should identify what the veteran cannot do and then discuss ways to address any identified performance issue(s).

What is a "disability" under the The Americans with Disabilities Act (ADA)?

The Americans with Disabilities Act (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 (i.e., was substantially limited in the past, such as prior to undergoing rehabilitation); or

  3. is regarded, or treated by an employer, as having such an impairment, even if no substantial limitation exists. You are considered qualified if you are able to meet an employer’s requirements for the job, such as education, training, employment experience, skills, or licenses, and can perform the job’s essential or fundamental duties with or without reasonable accommodation.

Is disability a protected status against employment discrimination for veterans?

An amendment to the ADA in 2008 made it easier for veterans to qualify for this protected status by broadening the range of conditions considered for disability protection. This addition partly included problems that may not affect every aspect of someone’s life, including episodic conditions like PTSD that may only need to have reasonable accommodations made occasionally, per request.

While the ADA, the U.S. Department of Defense, and the U.S. Department of Veterans Affairs (VA) all have different standards for determining eligible disabilities, a number of service-related conditions are already considered disabilities written into the ADA for the protection of veterans.

Reasonable Accommodations for Disabled Employees

Disabled employees have the right to reasonable accommodations. These may include:

  • Written materials or Braille

  • Extra time for test-taking

  • Accessible locations to perform work

  • Modified equipment and surroundings

  • Working from home accommodations

  • Job coaching

  • Amended methods and processes

  • Reassignment in some cases

Affirmative Action for Veterans with Disabilities

Although the ADA prohibits discrimination "on the basis of disability," it does not prevent affirmative action on behalf of individuals with disabilities. Thus, a private employer may—but is not required to—hire an individual with a disability who is qualified (including a veteran with a disability) over a qualified applicant without a disability.

 An employer, therefore, may ask applicants to voluntarily self-identify as individuals with disabilities or "disabled veterans" when the employer is:

  • undertaking affirmative action because of a federal, state, or local law (including a veterans' preference law) that requires affirmative action for individuals with disabilities; or,

  • voluntarily using the information to benefit individuals with disabilities, including veterans with disabilities.

Employers who give preference to disabled veterans may ask if you are a disabled veteran on an application. This question is either optional or for affirmative action.

  • Information collected for affirmative action purposes must be kept separate from the application to ensure that confidentiality is maintained.

  • If an employer invites applicants to voluntarily self-identify, the employer must indicate clearly and conspicuously on any written questionnaire used for this purpose, or state clearly (if no written questionnaire is used), that:

    1. The information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and

    2. The specific information is being requested on a voluntary basis, it will be kept confidential in accordance with the ADA, refusal to provide it will not subject the applicant to any adverse treatment, and it will be used only in accordance with the ADA.

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.

State Law

Louisiana State Law and Veteran Discrimination

Louisiana Law, LA Rev Stat 23:332 prohibits intentional employment discrimination. 

Retaliation claims for other types of discrimination complaints are not covered under the Louisiana Employment Discrimination Law. Under La. Rev. Stat. § 23:967 General Whistleblower Protection Law an employee may not be discharged (or discriminated against) in retaliation for performing, in good faith, the following activities:

  1. Disclosing (or threatening to disclose) a workplace act or practice that violates state law;

  2. Providing information or testimony in a public investigation, hearing, or inquiry into any violation of the law;

  3. Refusing to participate in (or objecting to) an illegal employment act;

  4. To be protected under this statute, the employee must first inform the employer of the violation. An employee is not protected if he goes directly to a governmental agency without first advising the employer. Also, an employee must be certain that the illegal conduct actually happened; a reasonable, good faith belief will not protect an employee if no violation actually occurred. 

The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, there are exceptions to the general rule; the Louisiana whistleblower protection statute. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: health care employees, insurer employees, labor investigations & proceedings, and workers' compensation.

In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

LA Rev. Stat. Sec. 23:1001

  • Allows for private employers to voluntarily establish a policy which may grant preference in hiring to a veteran or a certain family member of a veteran. This is permissive and not mandatory for private employers.

  • Although the ADA prohibits discrimination "on the basis of disability," it does not prevent affirmative action on behalf of individuals with disabilities. Thus, a private employer may—but is not required to—hire an individual with a disability who is qualified (including a veteran with a disability) over a qualified applicant without a disability.

LA Rev. Stat. Sec. 29:422 - Enforcement of Servicemembers Civil Relief Act; Uniformed Services Employment and Reemployment Rights Act

  • All of the benefits, protections, and rights provided by USERRA applies to veterans under Louisiana law. 

How to File a Charge

How to File a Charge

Laws like The Americans with Disabilities Act (ADA) require you to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or the Louisiana Commission on Human Rights (LCHR) before you can file a discrimination lawsuit against your employer. An individual alleging a violation of ADA must file a charge with the EEOC or LCHR before you can file a discrimination claim in federal court. You can also file your claim in state court based on state law without filing with the EEOC or LCHR first.

  1. To File a Claim with the Equal Employment Opportunity Commission (EEOC):

    • Within 180 days of the alleged unlawful compensation practice. 

    • 15 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).

  2. To File with the Louisiana Commission on Human Rights (LCHR):

    • Within 180 days of the alleged unlawful compensation practice

    • 20 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last)

  3. To File in a State Court under Louisiana State Law:

    • You may file a claim under state law without having first gone to either the EEOC or LCHR.

    • Generally, to preserve your claim under state law based on your state discrimination claims, you must file within 1-year or 360 days of the date you believe you were discriminated against. 

    • If you file your discrimination claim with the EEOC or LCHR within 300 days of the discriminatory treatment, then you have an additional 6-month extension from the 1-year period to file your claim in Louisiana state court (meaning you have 18 total months).

    • A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute such as Title VII, ADEA, ADA, GINA, and/or PDA because the employer is based in another state.

  4. To File a Discrimination Claim in Federal Court:

    • To preserve your claim under federal law, you must cross-file with the EEOC or LCHR within 300 days of the date you believe you were discriminated against.

    • A federal employment discrimination case cannot be filed in court without first going to the EEOC or LCHR, as discussed above, and having the EEOC or LCHR dismiss your claim.

    • This process is called “exhaustion” of your administrative remedy. The EEOC or LCHR must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim.

    • A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. Be sure to mark down that date when you receive the notice.

 

 

USERRA

What rights do veterans have under the Uniformed Services Employment and Reemployment Rights Act (USERRA)?

The Uniformed Services Employment and Reemployment Rights Act (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.

USERRA has requirements for reemploying veterans with and without service-connected disabilities and is enforced by the U.S. Department of Labor (DOL) and the U.S. Department of Justice (DOJ). The Department of Labor also provides a USERRA Advisor to help understand employee eligibility, employer obligations, benefits, and remedies under the Act.

USERRA protections fall under 3 broad categories:

  • Reemployment rights: You have the right to reemployment in your civilian job as long as certain conditions are met, including proper notice to your employer prior to service and prompt return to your civilian position after service is complete.

  • Protections from Discrimination & Retaliation: Affiliation with uniformed services cannot prevent you from employment, reemployment, promotion, retention, or other employment benefits.

  • Health Insurance Protection: You have the right to elect to continue your existing employer-based health plan coverage for you and your dependents for up to 24 months while in the military or to be reinstated to that health plan upon return.

USERRA and The Difference from the ADA - Reasonable Accommodation

While the ADA requires employers to make certain adjustments for veterans with disabilities called "reasonable accommodations," USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment.

  1. If, the veteran has a disability incurred in, or aggravated during, his or her service, the employer must make reasonable efforts to accommodate the disability and return the veteran to the position in which he or she would have been employed if the veteran had not performed military service.

  2. If the veteran is not qualified for that position due to disability, USERRA requires the employer to make reasonable efforts to help qualify the veteran for a job of equivalent seniority, status, and pay, the duties of which he or she is qualified to perform or could become qualified to perform. This could include providing training or retraining for the position at no cost for the veteran.

VEVRAA

What rights do veterans have under the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA)?

The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) is a law that prohibits federal contractors and subcontractors from discriminating in employment against protected veterans and requires employers take affirmative action to recruit, hire, promote, and retain these individuals.

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. VEVRAA also requires these businesses to list their employment openings with appropriate employment service delivery systems, and to give covered veterans priority in referral to such openings.

That same preference is not mandatory in the hiring process, although an employer may choose to provide a disabled veteran preference.

Protected Veterans under VEVRAA:

  • Disabled veterans

  • Recently separated veterans

  • Active duty wartime or campaign veterans

  • Campaign badge veterans

  • Armed Forces service medal veterans

Last Review and Update: Sep 20, 2022
Was this information helpful?
Back to top