Best
Ohio Military Discrimination Lawyer Answer:
Is it illegal to ask about military service during a job interview? What is
Military Employment Discrimination? How do I know that my military status was
not a factor in the company’s decision not to hire me? Can a prospective
employer consider my military status when making a hiring decision? How do I
request leave from my job for military training?
“I can imagine no more rewarding a career. And any man who may be
asked in this century what he did to make his life worthwhile, I think can
respond with a good deal of pride and satisfaction: ‘I served in the United
States Navy.” John F. Kennedy (See Military
Quotes).
If the military chants, “Sound
off, 1-2-3-4…” or “Left, right, left…” resonate with you, due to your time in
the service, then you may be in the right place. (See Military
cadence). Unfortunately, there are many barriers to work for
veterans and those currently in the military. Employment discrimination is one
of them. Employers are sometimes unwilling to hire people who were in the
military, because of stereotypes about PTSD or other military duty related
disabilities. Some employers incorrectly assume that people who have been in the
military are unable to adjust back to civilian life. Unfortunately, some employers
want to avoid hiring someone who could be deployed at any time.
Employees may not be aware that serving in the military is a protected status in employment discrimination law. It is illegal for employers to discriminate or retaliate against them, because of their military status. Discrimination based on military status violates both the Uniformed Services Employment and Reemployment Rights Act (“USERRA“) and Ohio Revised Code 4112. Ohio defines “military status” as a person’s status in service in the Uniformed Services. (See 4112.01 Civil rights commission definitions).
So, to answer our question –
Can I not be hired because of my military service? – the answer is, not
legally. Refusing to hire an applicant because of a military service history is
unlawful under USERRA
and many state laws.
Our employment lawyers know the correct way to assert a case for
military status discrimination. USERRA requires three things
when facing a discrimination issue: (1) the employee is a person protected by
the act (2) the employer engaged in a prohibited adverse action against the
employee and (3) the employer’s actions must be motivated by the employee’s
military status. (See Military Employment Discrimination Video; Military Status Discrimination; and The Right to Reemployment). For retaliation cases,
usually the USERRA will apply when an
employee complains about the employer’s military leave policy and then is
disciplined or terminated for complaining.
USERRA also protects
employees who takes leave of absences for military service. The law provides
for reinstatement. Employers cannot replace employees, while they are on
military leave. Instead, they are required to hold their job open while they
are gone. All employees must do is (1) notify their employer that they would
like their job back, (2) the employee must not have been dishonorably
discharged from the service and (3) the employee must notify the employer
within a certain time frame, which varies depending on how long the military service
was. An employee’s leave time can extend for up to five years.
Even if you are unsure about
whether you are protected by the USERRA,
give our employment attorneys
a call. The language of the statute is very broad and includes most people who
were in the uniformed services. That means that the law applies to those in the
Air Force, Army, Marine Corps, National Guard, and the Navy. Even some disaster
workers can qualify for protection.
You do not have to be on active
duty to be protected. The statute covers those entering basic training,
inactive duty training, active duty training, and those currently serving on
active duty. Additionally, bringing a claim under USERRA is easier than some other discrimination statutes,
because the number of employees at the company has can be large or small. There
is no size requirement unlike other laws. There is also no statute of
limitations to bring a claim. Therefore, even if the discrimination occurred a
long time ago, an employee may still be able to file a lawsuit.
While the USERRAis the main law that people think of when it
comes to military status discrimination, there is also another route for
employees who have served. For those who were injured while serving in the
military, the Americans with Disabilities Act (“ADA“)
may provide protection. The ADA prevents
discrimination on the basis of an employee’s disability. It also requires
employers to make reasonable accommodations for employees who have
disabilities. (See Do I Have A Disability Discrimination Case?; Does My Boss Have To Give Me An Interpreter?; Best Disability Discrimination Lawyer Answer: What Is My
Job Required To Do Once I Notify Them Of My Disability?). This is a great
solution for veterans who suffer from a disability. It enables the employee to
notify their employer of the disability and to request an accommodation from their
employer.
One instance of where military
status discrimination in employment occurs is when a person is job hunting and
is turned down by a potential employer. Military status cases are somewhat
rare, but Lindsey Hunger v. Walmart, Inc. was a recent case that dealt
with this. The case was widely publicized case, particularly because the employer,
Walmart was a well-known company.
Hunger
was in the market for a job and attempted to find one at Walmart. At the time, Hunger
was a full-time student with children, so she was in desperate need of a job.
When she applied at Walmart, a Walmart hiring representative called Hunger to
discuss the position. While on the phone, Hunger shared that she was a member
of the Navy Reserve. She also said that she would need to take two weeks off
work over the summer for her mandatory two-week training, which occurred
annually. In response, Walmart’s hiring representative told her that Walmart
could not hire her, because the summer was their busy season.
The message that Hunger was
told by Walmart was later verified, because Hunger was receiving public
benefits. To receive public benefits, the individual has to document their job
search. Thus, the government agency called Walmart to verify what Hunger had told
the agency. Walmart confirmed that they would not hire Hunger, because she had
to miss work for training. The hiring representative also admitted that she did
not know what USERRA was.
Can you believe that? How does
a company the size of Walmart not properly train its Human Resource Department
(“HR”) about USERRA? You can imagine that if Walmart’s HR is this badly trained
there are going to be a lot of other employers out there that don’t have a clue
about the law and will unlawfully discriminate against those serving our
country in the military.
The case was in the news again,
because the parties reached a successful settlement. The Department of Justice (“DOJ“) had taken the
case on behalf of Hunger. Petty Officer Hunger was compensated for the
discrimination she faced and received backpay as part of the settlement. Also,
Walmart had to revise its employment and hiring policies in the aftermath of
the lawsuit. The policy now states, “Walmart prohibits discrimination against
individuals, including applicants, based on their military service (including
required military training obligations) or membership in the uniformed services.”
(See Walmart Settles With DOJ; Agrees To Change Hiring Practices). Walmart is now training all supervisors on employee’s rights
under USERRA.
Even though this case did not
occur in Ohio, it is still relevant, because Walmart had to revise its hiring
policies nationally. Therefore, the new policies will affect employees in Ohio.
And, it’s a perfect example of when military status discrimination can arise.
Another typical kind of
military status discrimination case is when an employee who is or was in the
uniformed services previously, is fired because of their military background. This
is called wrongful termination. This is what
occurred in Hickle v. American Multi-Cinema, Inc., a Sixth Circuit Court
of Appeal case. Hickle was an employee who worked for AMC, but he
also was in the Ohio Army National Guard. Hickle decided that he wanted to
apply for a management position. During his interview, he shared that he would
have to leave for military training for six months. His employer ended the
interview as soon as he shared this.
Though he was promoted several
months later after he returned from military training, he faced constant discrimination
at work. His boss expressed disapproval of Hickle when he would leave for
military duty. Also, his boss told Hickle that he would be fired for missing
work, because of military duty. When Hickle informed him that discriminating
because of military status was illegal, his boss said “that’s okay. We will
find something else to terminate you on.” Hickle was eventually fired. Yeah,
that’s a pretty horrible thing for a boss or manager to say. Essentially,
supervisor was promising to make up a false reason for termination. In
employment law, attorneys call this pretext. (Employment
Discrimination Question: What Is Pretext?; Top
Lawyer: What Should I Do If My Boss Lies About Why I Was Fired?; Can
I Be Fired For Lies By My Racist Manager?).
In this case, the lower court
decided in favor of Hickle’s employer, AMC. Yet, fortunately for Hickle, the United
States Court of Appeals for the Sixth Circuit reversed the decision. The Court
of Appeals found that there was still a question of whether military animus was
a motivation behind Hickle’s termination. Now, Hickle will have the chance to
be heard again by the lower courts and he will hopefully receive compensation.
If
you have been fired, discriminated against,
demoted based on your military service, be it for the Army, Navy, Air Force,
Marines or National Guard;
or even think that you might need an employment lawyer, then it would be best
to call the right attorney to schedule a free and
confidential consultation. Call our office at 866-797-6040. If you have been wrongfully terminated or fired for any
reason within one year of returning from serving in the United States Armed
Forces, you may have a claim. Do not wait. Call the right attorney now. You
have protected us. Let us protect you. Spitz, The Employee’s Law Firm and its attorneys are
experienced and dedicated to protecting employees’ rights and solving
employment disputes.
Disclaimer:
The
materials available at the top of this page and at this employment law website
are for informational purposes only and not for the purpose of providing legal
advice. If you are still asking, “How do I get
reinstated to my civilian job after serving in the U.S. military (Army,
Navy, Air Force, Marines or National Guard)?”, “What should I do if I was fired
while serving in the military?” “My boss discriminated against me because I’m a
Marine” or “I was fired within a year of returning from he U.S. military (Army,
Navy, Air Force, Marines or National Guard)? What should I do?” — It would be
best for to contact an Ohio attorney to obtain advice with
respect to any particular employment law issue or problem. Use and access to
this employment law website or any of the links contained within the site do
not create an attorney-client relationship. The legal opinions expressed at or
through this site are the opinions of the individual lawyer and may not reflect
the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.