How Employers Illegally Discriminate Against Veterans with Less-than-Honorable Discharges

The following piece is a guest post by Alyssa Peterson and Arjun Mody. Alyssa and Arjun are law student interns within the Yale Law School Veterans Legal Services Clinic, which serves as counsel to the Iraq and Afghanistan Veterans of America – Connecticut Chapter.

In early May, the Connecticut General Assembly voted unanimously to extend state veterans benefits to veterans with other-than-honorable discharges and a diagnosis of post-traumatic stress disorder, traumatic brain injury, or military sexual trauma. These legislative efforts accompany recent guidance by the Connecticut Commission on Human Rights and Opportunities (“CHRO”) warning employers that discriminating based on discharge status may violate state antidiscrimination law, as the military issues less-than-honorable discharges at a higher rate to LGBT service members, service members with disabilities, and service members of color.

Connecticut’s efforts offer a model for addressing the collateral consequences of these biased policies. The barriers associated with less-than-honorable discharges (colloquially known as “bad paper”) are often overlooked, but they affect veterans for the rest of their lives. After receiving a less-than-honorable discharge, veterans cannot access most state and federal veterans’ benefits. Moreover, a number of employers have gone so far as to adopt blanket bans on hiring veterans with bad paper. Because these employer policies necessarily produce adverse impacts on the basis of an individual’s sex, sexual orientation, disability, and race, they are susceptible to legal challenge.

LGBT Status

For decades, as a matter of policy, the military explicitly discriminated against LGBT people under Don’t Ask Don’t Tell (“DADT”). Many service members received bad paper as a direct result of their sexual orientation, and the DoD has refused to proactively issue upgrades to the affected veterans. In fact, the military continues to discriminate against LGBT people even after DADT’s repeal. In March, President Trump instituted a policy that disqualifies transgender people from military service. The White House has since clarified that transgender individuals who are currently serving may remain in the ranks but could be required to serve according to their sex assigned at birth. Trans people who are currently serving in the armed forces could now face a similar choice as the LGB people who served under DADT: stay closeted or risk receiving a less-than-honorable discharge. Additionally, if a trans person designates a gender other than their birth sex when they enlist, they could receive a bad paper discharge for fraud. An employer’s decision to reject a job applicant on the basis of their discharge status may in actuality be a decision to reject them solely on the basis of their sex or sexual orientation.

Disability

The military has also disproportionately disciplined veterans with mental disabilities. Through our work at the Yale Law School Veterans Legal Services Clinic, we have had the opportunity to meet many veterans who have been less-than-honorably discharged. One such veteran is Thomas Burke. During a tour in Afghanistan—his second combat deployment in a year—Tom befriended a group of Afghan boys. One day, the children found a rocket-propelled grenade where they had been swimming and, hoping to be helpful, carried it back to Tom’s compound. On the way, it exploded. He was tasked with cleaning up what remained of their bodies. Tom self-medicated with hash to escape the nightmares, but eventually his PTSD became so severe that he attempted suicide. Instead of providing him with treatment, the military administratively separated him from service with a less-than-honorable discharge for drug use.

Tom Burke’s story is common. In May 2017, the Government Accountability Office found that 62% of service members separated for misconduct between 2011 and 2015 had been diagnosed with PTSD, traumatic brain injury (TBI), or other mental health conditions that could be associated with misconduct. The vast majority of these veterans are discharged in an administrative process that relies heavily on commander discretion with few procedural protections. Some veterans have even told the clinic that they waived their rights and accepted bad paper discharges in the hope of receiving mental health treatment, only to find out later that their discharge status disqualifies them from care. Although the recently-passed Honor Our Commitment Act now allows certain veterans with bad paper to access mental health care at the VA, the policy only addresses a small part of the harms experienced by this population. Outside of Connecticut, veterans with bad paper continue to be excluded from important benefits and face discrimination in employment.

Race

In addition to discriminating on the basis of sex, sexual orientation, and disability, the military continues to disproportionately discipline service members of color. In 1972, the Department of Defense’s Task Force on the Administration of Military Justice in the Armed Forces found that Black service members faced systemic discrimination and received disproportionate punishment within the military justice system. These disparities persist today: in June 2017, the veterans’ group Protect Our Defenders found that Black service members were two times as likely as white service members to have a disciplinary action taken against them in an average year. These racialized inequities in the military justice system resemble the disproportionate criminalization of people of color in the civilian criminal system.

Antidiscrimination Law Protects “Bad Paper” Veterans

While advocates should continue to directly address the discriminatory policies and norms that lead to these inequities in the first place, existing legal strategies offer a way forward to protect the rights of veterans once they have already been discharged. Litigation under Title VII and enforcement guidance from the Equal Employment Opportunity Commission—the same strategies used to tackle discrimination against people with criminal records—can serve as a model here.

As Connecticut’s CHRO has recognized, categorical bans on hiring veterans with bad paper adversely impact members of protected classes and contravene Title VII. In Griggs v. Duke Power Co, the Supreme Court held that a city employer’s use of a facially neutral examination in determining promotions violated Title VII’s prohibition on discrimination on the basis of race, as the test disproportionately disfavored Black applicants and the employer could not demonstrate a business necessity for the policy. Recent jurisprudence suggests that the Griggs disparate impact standard could also apply to policies that disproportionately affect LGBT people. In Zarda v. Altitude Express, Inc., the Second Circuit found that discrimination based on sexual orientation qualifies as sex discrimination per se. Similarly, the Sixth Circuit recently held in EEOC v. R.G. and G.R. Harris Funeral Homes that discrimination against transgender people is motivated by the individual’s sex. Due to documented disparities in discipline for service members of color, service members with disabilities, and service members who identify as LGBT, plaintiffs challenging categorical bans on hiring veterans with bad paper will have little difficulty making out a prima facie case of disparate impact under antidiscrimination laws.

Courts and the EEOC have in fact recognized that discrimination on the basis of discharge status produces adverse impacts in violation of antidiscrimination law. In Dozier v. Chupka, a federal district court in Ohio halted a city fire department’s practice of automatically disqualifying applicants with bad paper. The court held that the employer’s policy created adverse impacts based on race and rejected the city’s business necessity defense, as the department had not demonstrated that the individuals’ discharge status was related to job performance. Moreover, following the release of the 1972 DoD Task Force Report, the EEOC concluded that an employer’s honorable discharge requirement in hiring would violate Title VII absent a showing of business necessity. See EEOC Decision No. 74-25 (1973). In 1975, the EEOC reaffirmed its position that a blanket policy of refusing to hire or reemploy veterans with less-than-honorable discharge statuses violated Title VII. See EEOC Decision No. 76-13 (1975).

Employers will be unable to mount a successful business necessity defense against a legal challenge to these blanket bans. As the EEOC has recognized in the context of criminal records, employers must provide job applicants with individualized consideration that assesses “[t]he nature and gravity of the offense or conduct; [t]he time that has passed since the offense, conduct and/or completion of the sentence; and [t]he nature of the job held or sought.” The sheer variety in the type of misconduct that can lead to a less-than-honorable discharge casts serious doubt on the claim that all veterans with bad paper would be unsuited for a particular job. Moreover, many individuals with bad paper committed offenses that are not criminalized in the civilian context; for instance, veterans have received bad paper for offenses such as missing a flight for deployment due to a suicide attempt, adultery, or going absent without official leave. In one case, the military initiated bad paper separation proceedings against a veteran for failing to self-report an overdose—while he was on life support. An employer’s business necessity claim will have no relevance in the case of LGBT people who were targeted and pushed out of the military because of their identity.

Connecticut is the first state in the country to extend state benefits to veterans with bad paper as well as recognize hiring practices that categorically exclude these veterans from employment opportunities as discriminatory. These steps not only challenge the stigma associated with bad paper; they empower these veterans to more fully participate in the workforce and re-enter civilian life. Other states must follow suit and take action to protect these individuals’ civil rights.

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The Harvard Civil Rights-Civil Liberties Law Review (CR-CL) is the nation’s leading progressive law journal. Founded in 1966 as an instrument to advance personal freedoms and human dignities, CR-CL seeks to catalyze progressive thought and dialogue through publishing innovative legal scholarship and from various perspectives and in diverse fields of study.

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