Think Before Asking About a Veteran’s Discharge Status

 

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Federal and state laws prohibit businesses from discriminating against honorably discharged military service members, but employers may also face discrimination lawsuits if they have policies against hiring less-than-honorably discharged veterans. Here's why.

There's a gray area between an honorable discharge and a dishonorable discharge, and civilian hiring managers might unintentionally lump together the different types when they shouldn't, said Michael Studenka, an attorney with Newmeyer & Dillion in Newport Beach, Calif., and a former judge advocate in the U.S. Marine Corps.

In the military system, there are two main categories for separations: administrative and punitive, he explained. A punitive or disciplinary separation is adjudicated through a court martial under the Uniform Code of Military Justice. A criminal proceeding that ends with a finding of guilt might result in jail time, a fine, a reduction in rank or a punitive discharge—either a dishonorable discharge or a bad conduct discharge. A rape or murder conviction would lead to a dishonorable discharge, whereas a bad conduct discharge may be given for a lesser offense.

Most of the confusion comes in on the administrative side, Studenka noted. "It is essentially like a firing. The military says that you are no longer qualified or are no longer the type of employee that we want, so we are going to terminate the relationship."

But private employers shouldn't assume that such a discharge makes a job candidate ineligible for hire. Absent an investigation, an employer is unlikely to know the root cause of a candidate's discharge, said Alonzo Martinez, associate counsel of compliance at HireRight, an employment background screening provider. "A discharge may have been caused by an administrative issue, a simple mistake made by the candidate, or something more serious," he said. "However, without that detail, employers who rely on a candidate's discharge status effectively perpetuate the military's past decision without further context."

Attorneys said it is best not to ask job applicants about the nature of their discharge from military service because they may discover information about an applicant's disability, medical history, sexual orientation or other protected category. A better practice is to ask applicants if they have any experience as a result of their military service that they believe would assist them in performing their job duties, Studenka said.

If an employer does become aware of a candidate's discharge status, it is a best practice to provide individualized consideration about the nature of the discharge, the time elapsed since the discharge, the nature of the positions sought and how the discharge relates to the position the applicant is applying for, said Irene Rizzi, an attorney with Drinker Biddle in San Francisco.

Administrative Discharge

Private employers may not be aware of the different administrative discharge categories and the wide variety of reasons that employees may not receive an honorable discharge. There are three main categories:

  • Honorable Discharge. This means that the service member met or exceeded the conduct and performance standards of the military. 
  • General Discharge Under Honorable Conditions. This designation may apply to service members who had satisfactory performance records but did not meet all the conditions of their contract with the military. For example, someone who is overweight may not be fit for duty. The military will go through a process to help members change their diet and lose weight, but if they can't get to level that's within standards, they will ultimately be processed for separation, Studenka said.
  • Other-Than-Honorable Discharge. The reason for this type of separation may be based on a pattern of poor behavior or misconduct.

Hiring managers should note that there are various types of "other-than-honorable" discharges, including discharges for minor infractions that would not have subjected the service member to criminal penalties in civilian life. Thus, just knowing that an individual has received another-than-honorable discharge does not tell the employer very much, Rizzi said.

Discharges may have been issued by the military for such things as sexual orientation or actions resulting from mental health issues such as post-traumatic stress disorder, so there may not be a relationship between the discharge and the candidate's ability to perform, Martinez said.

Laws Protecting Veterans

Although federal and state laws have been enacted to provide employment protections for military service members, many of those laws only cover honorably discharged veterans. For example, the Uniformed Services Employment and Reemployment Rights Act provides that an employer is not required to reinstate a service member who is separated from service with a "dishonorable or bad conduct discharge" or "under other-than-honorable conditions." And some states, such as Wisconsin, specifically allow employers to refuse to hire a worker who has been discharged from military service under other-than-honorable conditions.

But attorneys caution against requiring honorable discharge for employment purposes. Hiring managers should understand that exclusionary policies against hiring veterans that didn't receive an honorable discharge may have a disparate impact on protected characteristics, Rizzi said.

Recognizing this issue, Connecticut issued guidance this year stating that an employer's "reliance on discharge status may violate Connecticut anti-discrimination law absent a showing of business necessity because of its disparate impact on service members' race, color, disability, sexual orientation, gender identity or expression or other protected class statuses."

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An employer should have a legitimate job interest to inquire into a candidate's former military status, Martinez said. "There must be some rational relationship between the individual's military history and the job that they are going to perform, and the extent of the inquiry should generally be limited to verifying if an individual served."

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