Home » Blog » Articles » Military Status Discrimination in Employment

Military Status Discrimination in Employment

by mjpospis on November 11, 2013

in Articles, Disability Discrimination, Employment Discrimination, Military Status Discrimination

Today is Veterans Day, an official holiday to honor American veterans of all wars.  One day is hardly enough to honor and recognize the sacrifices (in many cases, the ultimate sacrifice) made by U.S. soldiers.

While it is unfathomable that those who have faced the threat of imminent death on the battlefield may return home only to face hardship and discrimination at work, it happens. Various laws, however, offer protection against such discrimination.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA), codified at Title 38, Chapter 43 of the U.S. Code, provides significant protections for uniformed service members.

Section 4311 of that statute provides:

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

(b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services.

USERRA also provides for reemployment rights for uniformed servicemembers, as well as other benefits and protections.

Family and Medical Leave Act of 1993

Another federal law, the Family and Medical Leave Act of 1993 (FMLA), was recently amended to provide employees with family members serving in the Armed Forces, National Guard and Reserves with leave for reasons related to their family members’ military service.

For example, the FMLA provides for two types of military-related work leave, codified in 29 U.S.C. § 2612.

The first type (known as “qualifying exigency leave”), provides for “a total of 12 workweeks of leave during any 12-month period … [b]ecause of any qualifying exigency … arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.”

The second type (known as “military caregiver leave”), provides that “an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember” (during a single 12-month period).

Americans with Disabilities Act

Veterans with “disabilities”, and who are otherwise qualified, are protected under Title I of the Americans with Disabilities Act.

New York State Human Rights Law

At the state level, the New York State Human Rights Law makes it an unlawful employment practice for an employer, because of an individual’s military status, “to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”

Anti-Military Discrimination is Actionable

In sum, the law provides various employment-related protections for military service members and their families.  If you believe your rights are being violated, don’t hesitate to contact us today.

Additional Resources

Categories: Articles, Disability Discrimination, Employment Discrimination, Military Status Discrimination

Tags: , , ,

Previous post:

Next post: