Commission On Human Rights Issues Guidance On Nondiscrimination Against Veterans

The Connecticut Commission on Human Rights and Opportunities has issued guidance on nondiscrimination in the hiring and employment of Connecticut veterans (the “Guidance”). Although discrimination against veterans already was prohibited pursuant to federal law, in October 2017, Connecticut law was amended to prohibit discrimination against any person honorably discharged, or released under honorable conditions,[1] in employment, housing and credit transactions.  The Guidance, however, focuses not just on nondiscrimination against honorably discharged veterans, but is expanded to include nondiscrimination against veterans who may have other than honorable discharges.  Per the Guidance, failing to hire veterans based on these other types of discharges may result in discrimination on the basis of other protected categories such as race, color or sexual orientation whether or not it falls under the specifics of Connecticut or federal laws protecting veterans.

The United States military generally discharges service members under one of five categories: (1) honorable discharge, (2) general discharge under honorable conditions, (3) other-than-honorable discharge, (4) bad conduct discharge, or (5) dishonorable discharge.  Honorable discharge indicates that a serviceperson received good or excellent ratings during their service.  A “general discharge under honorable conditions” generally indicates that the serviceperson’s performance was satisfactory but that he/she failed to meet all the expectations.  In this type of discharge, there is often some type of discipline in the serviceperson’s file.  An “other than honorable” discharge means that the serviceperson engaged in more serious misconduct.  Both “bad conduct” and “dishonorable discharge” can only be issued after a court martial, which is the military’s version of a criminal trial.  Thus, these are generally reserved for the most egregious types of misconduct.

Similar to the recent discussions surrounding criminal convictions and race discrimination, per the CHRO’s Guidance, a 2017 analysis of the Department of Defense’s records revealed that Black service members are two times more likely than White service members to have disciplinary action taken against them. A blanket prohibition against hiring veterans with anything less than an honorable discharge or general discharge, therefore, could result in discrimination against veterans based on race.  Similarly, prior to 2011, LGBT servicepersons may have received a less than honorable discharge based solely on their sexual orientation or gender identity.  Thus the refusal to hire such a service member based solely on the individual’s discharge status could result in illegal discrimination.  The CHRO also notes that veterans with mental health conditions may have received less than honorable discharges based on misconduct that was directly related to their mental health condition.  Employers, therefore, must take care that their employment policies surrounding veterans do not inadvertently lead to discrimination against veterans based on other protected categories such as race, disability, sexual orientation or gender identity and expression.

In order to avoid discrimination, the CHRO suggests that employers do the following: (1) provide individualized consideration to veterans with less-than-honorable discharges including reviewing why the veteran was discharged, how long ago was the discharge, and how the discharge is in any way related to the position for which the veteran is applying; and (2) provide the veteran with an opportunity to present his/her case as to why the discharge should not be factored into the hiring decision.  Further the Guidance notes that for a veteran who was discharged due to conduct arising from a disability, the employer would have an independent obligation under state and federal law to provide a reasonable accommodation to the employee that would allow him/her to perform the essential functions of the job in question.

To the extent that a business is using a credit reporting agency to conduct background checks and the background check reveals information regarding the individual’s discharge status, this would fall under the Fair Credit Reporting Act’s provisions requiring an employer to provide notice to the applicant prior to making any hiring decision.

Finally, the CHRO suggests some further best practices when making employment decisions about veterans. It is suggested that an employer not request the military Form DD-214 regarding the individual’s discharge status until the final stages of the hiring process.  If an employer is requesting the DD-214 form, it should request only the short-form version, which includes less invasive information.  Finally, the CHRO recommends that employers include affirmative language in their job applications saying that veterans are welcome to apply regardless of discharge status.

The CHRO’s Guidance can be accessed here: https://www.ct.gov/chro/lib/chro/Veteran_Employer_QA_Guidance.pdf

[1] The CHRO Guidance suggests that the nondiscrimination statute applies only to those veterans with an “honorable discharge” and not those with a “general discharge under honorable conditions.”  The Statute’s reference to a “person honorably discharged, or released under honorable conditions” likely encompasses those individuals with a general discharge as well as those with an honorable discharge and thus gives an individual with a general discharge protection as a veteran in addition to any other protected status the individual might have.