Q. I thought veterans already had protections under federal law. What are the differences between state and federal protections?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 protects most veterans who have served in or are currently serving in the uniformed services. USERRA is enforced by the U.S. Department of Labor. USERRA protects veterans and service members against discrimination based on past, present, or future military service and prohibits retaliation against those who file claims under USERRA.
The Veterans Employment Opportunities Act (VEOA) of 1998 covers veterans’ preference in hiring at the federal level and is enforced by the U.S. Department of Labor.
Section 402 of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) of 1974 prohibits job discrimination against veterans with disabilities. VEVRAA also requires affirmative action in hiring when an employer has federal contracts of $25,000 or more.
Washington State law gives preference for hiring honorably discharged veterans of wars and military campaigns for state employment, including employment in every public department and public works of the state. Widows or widowers are also eligible for preference in employment. RCW 73.16.10.
The Washington Law Against Discrimination (WLAD), RCW 49.60, prohibits discrimination against on the basis of honorably discharged veteran or military status in the areas of employment, housing, public accommodation, and credit and lending. The WLAD also has greater protections for people with disabilities, as compared to the federal Americans with Disabilities version. This includes protections for people with traumatic brain injury, Post Traumatic Stress Disorder (PTSD), and depression or anxiety.
Q. If I have questions about federal laws, who can I contact for more information?
There are many resources available. A good first point of contact is the Washington Department of Veteran Affairs (WDVA) at 1-800-562-2308. If your question is related to employment issues about the National Guard or Reserve, you may wish to contact Employer Support of the Guard and Reserve (ESGR) at 1-800-336-4590. ESGR is part of the U.S. Department of Defense.
If your question is about USERRA, you can also contact the U.S. Department of Labor at 1-866-487-2365.
Q. As an employer, can I treat people who volunteer for military service differently than people who are ordered to active duty?
No, treating service members differently would be a violation of the WLAD and USERRA. 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. 43 USC § 4311(a).
Q. As a service member, how much advance notice am I required to provide to my employer when I know I will be leaving on duty?
There is no firm requirement for the amount of advance notice required under federal or state law, but the notice must be provided either in writing or verbally. An employee should have open communication with their employer and provide notice as soon as possible. However, under military orders, a person may be ordered to duty on a shorter timeframe.
For more information on USERRA and your rights and responsibilities under the law, visit www.dol.gov/vets/ and click on “USERRA Questions.”
Q. I am a veteran with a disability. If I am discriminated against, would I file a complaint because of my disability or my veteran status?
It depends on the situation. The WSHRC looks at the facts specific to each case. In some situations, discrimination happens based on multiple protected classes. For example, an honorably discharged veteran who also has Post Traumatic Stress Disorder (PTSD) and was asked probing questions during an interview about her PTSD could file a discrimination complaint both because of her military status and her disability.
Q. What kinds of questions can’t be asked by a potential employer?
An employer should not ask questions based on stereotypes. For example, an employer should not ask questions about political beliefs related to military service or questions based on the assumption that veterans and service members have PTSD or other mental health conditions or disabilities.
An employer may ask questions about military service the same as an employer would ask about any other work experience that may be relevant to the position.
Q. I’ve returned from military service and can’t perform my old job because of a service-connected disability. What should I do?
You may be able to perform your old job with reasonable accommodations. A reasonable accommodation might include a change of work schedule, modification to the equipment used to perform the work, or a reassignment of work duties. A person needs to be able to perform the essential functions of the job with or without a reasonable accommodation.
Q. My co-workers make fun of me because they say I have PTSD. What should I do?
PTSD is a medical condition and is considered a disability under the WLAD. The WLAD prohibits discrimination on the basis of real or perceived disability. Employers can be held liable for harassment based on a number of factors, including disability and veteran status. There are a number of options if you are being harassed at work on the basis of a protected class. Document the incident, including what was said, time of day, and witnesses, if any.
While one or two incidents may not rise to the level of illegal discrimination, it is important to take note of what is said, in case the situation worsens. Try to solve the issue at the lowest level possible. Try talking with the harassing party and let them know that you do not appreciate their behavior. You can also notify your supervisor or employer about the incident(s). An employer has the duty to keep the workplace free from harassment and discrimination.
Q. My employer didn’t hold my job open for me while I was on active duty. What should I do?
Under USERRA, an employer has legal responsibilities to keep a position open when someone is deployed. If you notified your employer of your deployment and your position was not held open, you can contact the U.S. Department of Labor at 1-866-487-2365. The WDVA is also a resource and can be reached at 1-800-562-2308.
Q. Who is considered an employer?
The term “employer,” for the purposes of this law, includes persons or organizations that employ eight or more persons, and does not include non-profit religious or sectarian organizations. The term “employee” does not include an individual employed by his or her parents, spouse, or child, or in the domestic service of any person.
Employment agencies and labor organizations are also subject to this law.
Q. What does “veteran or military status” mean?
RCW 49.60.040 defines honorably discharged veteran or military status to include a person who is a “veteran, as defined in RCW 41.04.007” or is “an active or reserve member in any branch of the armed forces of the United States, including the National Guard, Coast Guard, and Armed Forces Reserves.”
Q. Do these protections prohibit discrimination against veterans who have received something other than an honorable discharge?
No. RCW 49.60.040 prohibits discrimination on the basis of veteran or military status only when a discharge has been honorable. There are five types of military discharges including honorable; general; undesirable; bad conduct; and dishonorable. There are many circumstances for which someone may receive something other than an honorable discharge.
Q. Can an employer refuse to hire or fire an individual because of that person’s honorably discharged veteran or military status?
No. Employers may not negatively consider veteran status when making hiring, firing or other employment related decisions, except in cases when veteran hiring preference is allowed or required by law, such as in employment at the state or federal level, depending on the position. Employers are also prohibited from discrimination in compensation and other terms of employment based on veteran or military status.
Q. When do employers need to be in full compliance of the new jurisdiction?
The statute has no phase-in period. Covered entities should begin to comply immediately.
Q. Will this law require that an employer hire a certain number of veterans?
Hiring practices must not discriminate based on veteran or military status to prevent a company from hiring veterans. The Washington State Human Rights Commission encourages diverse and inclusive hiring practices.
Q. Does the new jurisdiction cover harassment by co-workers?
The new statute does cover harassment by co-workers that the employer knows or should have known about, and that creates a hostile working environment for the victimized employee. To determine whether a hostile working environment exists, we would look at such factors as severity, pervasiveness, egregiousness, and frequency of the adverse acts, and whether they were based on the victim's veteran or military status.
The type of working environment is also important. In some types of workplaces, everyone treats everyone else with raw and crude language. We would also look to see if the conditions of work had been changed by the harassment, and whether the employer had taken appropriate action to stop the harassment. Employers should also have anti-discrimination policies in place, and implement and monitor them.
Q. As an employer, what else should I know about veteran and military status discrimination?
During the war in Iraq and Afghanistan, more veterans are returning to the United States with disabilities such as traumatic brain injury and Post-Traumatic Stress Disorder, or PTSD. While people with these disabilities do not necessarily show physical signs of injury, these conditions are still considered disabilities under the Washington Law Against Discrimination (WLAD), RCW 49.60. The WLAD also prohibits discrimination based on disability. Therefore, employers should not discriminate against those returning home from war or other military service based on veteran status or disability status.
Q. What financial penalties can be brought against employers for allowing harassment or discriminatory behavior against employees because of their veteran status? Generally, is one awarded lost wages or is there a financial penalty that people can bring to bear?
When our cases are adjudicated by administrative law judges, and a finding of discrimination is made, a wide range of penalties can be imposed by the judge. We should be able to pursue almost any remedy available at the federal court level under WAC 162-08-298 except the degree of general damages. See also RCW 49.60.250(6) and (7). General damages are limited: the WAC rule cited above prohibits punitive damages and the statute puts a $10,000 limit on humiliation damages. RCW 49.60.250(5). Other than that, the WSHRC should be able to pursue a range of employment "make whole" remedies, such as back wages, front wages, policy change, promotion, hire or reinstatement, accrued leave or other lost benefits, non-retaliation, and ceasing and desisting illegal acts and implementation of policies.
Our state law states that we are to be primarily concerned with achieving systemic changes in discriminatory policies and practices. In many cases where we find discrimination or where a case settles due to pre-finding settlement, the complainant does receive some money. However, the amounts are rarely of the very large size that people read about in the newspapers.
We often seek policy and practice changes by covered entities in settlements, and training for supervisors and managers on civil rights law.