Discriminating against Veterans with Less-than-Honorable Discharges in Hiring or Employment Could Subject Employers to Liability Under Civil Rights Laws

The CHRO has begun working with Iraq and Afghanistan Veterans of America – Connecticut Chapter and their counsel, the Yale Law School Veterans Legal Services Clinic, to address systemic discrimination against veterans. This post is written by Alyssa Peterson, a Yale Law Student Intern at the clinic to explain how the discriminatory issuance of “bad papers” affects minority veterans in violation of state and federal law.

 

Many Connecticut employers take the nature of an individual’s military service into account during the hiring process. Some companies adopt policies that automatically exclude veterans with less-than-honorable discharges from veterans’ preference programs or employment opportunities altogether. Other employers have informal or unwritten policies that effectively bar former service members with less-than-honorable discharges from employment. Policies that discriminate against veterans with less-than-honorable discharges may produce disparate impacts on the basis of race, sex, sexual orientation, and disability, which can subject employers to liability under state and federal civil rights laws. In order to ensure compliance with these laws, employers should afford all veterans—regardless of the character of their military discharge—individualized consideration in hiring and employment.

Generations of service members have been discharged from the U.S. Armed Forces for discriminatory reasons. For instance, for decades, the military investigated service members who were suspected of being gay, hauling them into commanders’ offices, interrogating them for hours, and pressuring them to identify other gay service members. Many of these service members were separated from service with a “less-than-honorable” discharge (known as “bad paper”) and labeled as “undesirable” on their military paperwork. Today, more than six years after Congress repealed Don’t Ask, Don’t Tell, as many as 100,000 veterans discharged with less-than-honorable characterizations for being LGBT have not received an upgrade, and remain marked as “undesirable.”

The military has also discriminated against service members based on race, disability, and sex. In 1972, the Department of Defense found that black service members faced systemic discrimination and received disproportionate punishment in the military justice system, including disproportionately negative discharge statuses upon separation from the armed forces. That discrimination persists today: black service members are two times more likely than white service members to have disciplinary action taken against them—including discharge with bad paper—despite having similar levels of educational attainment and income and undergoing the same eligibility screening process prior to enlistment.

Third, veterans with undiagnosed or untreated mental health conditions, including traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), are disciplined due to misconduct stemming directly from their mental disability, which often leads to a less-than-honorable discharge. Service members have even received bad paper discharges for suicide attempts triggered by untreated PTSD. And finally, veterans who experience sexual assault while serving frequently receive an other-than-honorable discharge, with stigmatizing reasons for separation, such as “personality disorder,” memorialized in their military records.

Discrimination against these veterans with less-than-honorable discharges persists when they return to civilian life. Civilian employers are often unaware or make assumptions about what conduct can result in a less-than-honorable discharge. However, many still use discharge status as an automatic disqualifier, and thus bad paper makes it difficult for veterans to secure public or private employment. The lingering stigma and shame of a less-than-honorable discharge is then compounded by unemployment and greater difficulty in reintegrating into the civilian community more generally.

Few civilian employers understand the military’s process of discharging service members. Contrary to the popular belief that veterans serve either “honorably” or “dishonorably,” there are five different types of military discharge that can appear on a veteran’s separation paperwork (known as a “DD-214”). These discharges are: Honorable, General (under honorable conditions), Other-than-Honorable, Bad Conduct, and Dishonorable.[1] Nearly all veterans who receive a less-than-honorable discharge are administratively separated from the military with a “General” or “Other-than-Honorable” status. But despite the rarity of a “dishonorable” discharge (which make up only a fraction of one percent of all discharges), many employers erroneously assume that all veterans with bad paper served dishonorably. As a consequence, veterans with bad paper are disqualified from employment on the basis of misconduct that would fall short of a criminal offense or even a traffic violation, such as missing a flight for deployment or watching a movie while on duty.

Private employers who discriminate against veterans with less-than-honorable discharges are at risk of violating state and federal civil rights laws, which bar employers from adopting policies that disproportionately impact members of protected classes unless the employer can demonstrate a business need for the practice. Refusing to hire or disfavoring veterans based on discharge status is likely to produce a disparate impact based on race, sex, sexual orientation, and disability because blacks, women, LGBT, and individuals with disabilities are statistically more likely to receive “bad paper” discharges due to endemic biases within the military justice system. Private employment practices that discriminate against veterans with bad paper are also unlikely to qualify as a “business necessity” because many veterans with bad paper (particularly those who have been discharged on the basis of minor infractions) would be able to perform the duties of the job in question. The EEOC has also concluded that employer reliance on discharge status may violate Title VII, absent a showing of business necessity, because of its disparate impact on black service members.

In order to avoid liability under antidiscrimination laws, employers should place an individual’s discharge in context and afford them individualized consideration. Rather than adopt a presumption that all veterans with bad paper are unfit employees, companies should take into account the nature and gravity of the veteran’s offense, the presence of mitigating circumstances such as PTSD, the time that has passed since the separation from the armed forces, and the nature of the job held or sought. Similarly and additionally, for those service members who were discharged due to conduct arising from a disability like PTSD, employers have an independent obligation under both state and federal law to provide “reasonable accommodations” like making a physical work environment accessible or providing a flexible work schedule, unless they can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity being provided. Adopting a policy and practice of individualized consideration would help protect employers from liability and ensure that all veterans have access to the employment they need, and the dignity they deserve.


[1] There is a sixth status, “uncharacterized,” given to service members discharged within 180 days of enlistment. It is neither honorable nor dishonorable.

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