The U.S. Equal Employment Opportunity Commission reports that there has been an increase in the percentage of veterans who report having service-related disabilities, either those that were incurred in, or aggravated during, military service.
Various laws protect veterans from discrimination in the workplace. These include:
- The Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq.(USERRA).
- Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 (ADA).
- The New York State Human Rights Law (NYSHRL)
- The New York City Human Rights Law (NYCHRL).
See generally, Donley v. Village of Yorkville, 2019 WL 3817054 (NDNY Aug. 13, 2019).
“USERRA prohibits employment discrimination on the basis of an employee’s membership and service in the uniform services of the United States and establishes certain reemployment rights following such service.” Donley, 2019 WL 3817054, at *6. “The purpose of USERRA is to encourage military service ‘by eliminating or minimizing the disadvantages to civilian careers’; ‘to minimize the disruption to the lives’ of service members and their employers ‘by providing for the prompt reemployment’ of service members; and ‘to prohibit discrimination’ against service members.” Id. (quoting Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011)).
ADA, Title I
Title I of the ADA prohibits an employer from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
For example, the ADA would prohibit an employer from refusing to hire a veteran because s/he has PTSD (assuming that PTSD constitutes a “disability” within the meaning of the statute). The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment[.]” 42 U.S.C. § 12102(1).
The ADA also provides that (absent “undue hardship”), the employer must “reasonably accommodate” a disabled applicant or employee. 42 U.S.C. § 12112(b)(5)(A).
NYSHRL and NYCHRL
The NYSHRL makes it unlawful for, inter alia, an employer to discriminate “in compensation or in terms, conditions or privileges of employment” “because of” an individual’s military status (N.Y. Exec. Law § 296(1)(a)), and the NYCHRL makes it unlawful for, inter alia, an employer to discriminate on the basis of an employee’s “uniformed service” (N.Y.C. Admin. Code 8-107(1)(a)).
The City Law defines “uniformed service” as
1. Current or prior service in:
(a) The United States army, navy, air force, marine corps, coast guard, commissioned corps of the national oceanic and atmospheric administration, commissioned corps of the United States public health services, army national guard or air national guard;
(b) The organized militia of the state of New York, as described in section 2 of the military law, or the organized militia of any other state, territory or possession of the United States; or
(c) Any other service designated as part of the “uniformed services” pursuant to subsection (16) of section 4303 of title 38 of the United States code;
2. Membership in any reserve component of the United States army, navy, air force, marine corps, or coast guard; or
3. Being listed on the state reserve list or the state retired list as described in section 2 of the military law or comparable status for any other state, territory or possession of the United States.
If you, or a loved one, has suffered military service-related discrimination in the workplace, feel free to contact us today to discuss your rights. The initial phone call is always free.