EMPLOYMENT DISCRIMINATION AGAINST MILITARY SPOUSES: A CASE FOR ILLEGALITY CONTRARY TO POPULAR BELIEF AND PRACTICE.

• Author: Wellman, Taren E.

1. INTRODUCTION A. Discrimination Against the Spouse is Discrimination Against the Member B. How Big is the Problem? II. STATE OF CURRENT LAW A. The Statutory Legal Framework 1. Title VII of the Civil Rights Act of 1964 2. Non-Title VII Antidiscrimination Sources of Protection a. Equal Pay Act b. Executive Order 11246 c. ADEA d. Pregnancy Discrimination Act e. Section 1981 f. ADA g. USERRA h. Executive Order 13152 i. Spousal Residency Relief Act B. Case Law Legal Framework 1. Discriminatory Treatment Cases 2. Mixed Motive Discriminatory Treatment Cases 3. Disparate Impact Cases III. THE CASE FOR MILITARY SPOUSES A. Military Spouses: Easy Targets for Stereotyping 1. Sex-Based Stereotyping of Military Spouses 2. Race-Based Stereotyping of Military Spouses 3. Pattern or Practice Cases Involving Military Spouses B. Mixed Motives and Protected Status "Plus" Discrimination 1. Mixed Motive Cases Involving Military Spouses 2. Protected Status Plus Military Spouse Discrimination a. Sex Plus Military Spouse Discrimination b. Race Plus Military Spouse Discrimination c. Other Protected Status Plus Military Spouse Discrimination C. Disparate Impact on Protected Classes: Women and Minorities 1. Disparate Impact on Women 2. Disparate Impact on Minorities 3. Issues of Proof IV. FIXING THE PROBLEM A. Movement in the Right Direction B. A Call for Action: Amending USERRA to Include Military Spouses V. CONCLUSION I. INTRODUCTION

   In the past half century, American society made tremendous strides in combatting overt discrimination in employment. In the United States, we have outlawed treating people differently in employment based on innate characteristics such as race, (1) color, (2) gender, (3) national origin, (4) and ancestry. (5) We have outlawed adverse employment actions because of circumstance such as age, (6) disability, (7) religion, (8) pregnancy, (9) marital status, (10) and military service. (11) These protections apply whether those circumstances arise by choice or otherwise and whether they are temporary or immutable. Although not illegal on a national scale, (12) we have made significant movement toward prohibiting employment discrimination based on sexual orientation and gender identity. (13) The preceding characteristics and circumstances have been deemed by society to be worthy of protection. (14) The gauge of worthiness is reflected by Congressional, executive, judicial, and state action.

   Military spouses (15) are a class of people not explicitly protected from employment discrimination. This means that a prospective employer can decline to hire someone purely on the basis that he or she is married to a person serving in the military. (16) This class of people currently encompasses more than 707,000 working-age people. (17) That figure does not fully capture the state of the problem. New military spouses are continually rotating through the status as people constantly join and exit the military, thus magnifying the number of lives affected. Unfortunately, the effects to military spouses' careers remain for the rest of their lives.

   The lack of discrimination protection for military spouses may come as a surprise to some readers, including even some labor and employment law practitioners. Why do employment protections exist for military members (18) but not for military spouses? Why do we extend protections to so many categories (such as active-duty military members who are already employed and arguably not in need of protection) but not protect their marital partners who are most affected by their service? Over 1.3 million people currently serve in the U.S. Armed Forces, (19) yet no protections exist for their civilian husbands and wives who endure the same or even greater effects and stigmas. Surely the progressive gains made by society regarding anti-discrimination efforts over the past half century should encompass this population deserving of protection.

   Military spouses often make sacrifices similar to those of their military member husbands or wives. Spouses are expected to take care of the family when the military member deploys or has an extended period of absence due to temporary duty. Military spouses largely give up any control of where they may live. Military spouses shoulder the stress and impact of their military member/spouse becoming wounded or killed in action. Military members have the luxury not to think about hiring discrimination while they are serving on active duty.20 Meanwhile, their spouses must confront it with virtually every application in the civilian sector.

   Despite rapid progress in the many other areas, we are still in the dark ages regarding overt discrimination directed toward military spouses. Employers can refuse to hire, promote, or provide equal advancement opportunities to military spouses. This discrimination often occurs overtly, without any second thought by the employer.

   As an active-duty military member, I have heard countless anecdotes of such discrimination from active-duty friends with civilian spouses. College-educated men and women are unable to obtain interviews despite hundreds of applications. License-holding professionals are unable to obtain licensure in their new states quickly enough to compete in their particular job marketplace. The demands and expense of childcare often thwart job seeking efforts before they begin. Separation from extended family that could help often exacerbates the problem for military spouses. These are stories heard far too often from peers who never dreamed their service would cause such detriment to the persons they love.

   Employers may often simply tell applicants that they will not consider them because they are military spouses. Because no law expressly prohibits such discrimination, the employer may feel free to inform the military spouse without fear of liability. Based on anecdotal accounts, it appears to be common to hear employers say such things as, "I'd love to hire you but I can tell from your resume that you are a military spouse." Statements like this are often accompanied with an express or implied sentiment that the employer cannot justify the cost of training if the applicant is likely going to move in a couple years. This overt expression of the employer's reasoning is rare; typically employers are not so candid about bias toward a group of people. But absent an express prohibition, it seems encouraged.

   Those discriminating against military spouses may feel justified on the premise that military members are too often transferred, and their spouses must therefore move too. This belief leads to the secondary assumption that hiring military spouses will result in high rates of turnover, a cost that many employers strive to minimize. The perception, when closely examined, is thus based on two distinct assumptions: (1) military members move more often than their civilian counterparts, and (2) civilian spouses always move along with their military spouses. As will be further discussed in this article, making employment decisions based on stereotypes regarding a particular class of people is usually problematic; making employment decisions based on stereotypes about a protected class is often illegal. (21)

   Military spouse employment discrimination also functions as a safe haven in which more invidious discrimination is harbored. It can unabashedly be used to hide discrimination based on innate characteristics such as gender, race, marital status, or sexual orientation. In these cases, the employer may not actually want to hire a woman, or minority, or married person, or homosexual for the job. But military spouse status may be used as a subterfuge to hide the true basis for the decision. The employer rests his justification for not hiring that particular applicant entirely on the military spousal status without acknowledging the true anti-protected class animus. Military spouse status is thus used to mask an impermissible motivating factor (22) for the decision, or is offered as a "legitimate" justification for the decision. Explicitly adding military spouses as a protected class would help dismantle this safe haven for such invidious discrimination.

   This article examines the current anti-discrimination legal landscape. It then lays out how military spouses as a class actually are protected under current law, contrary to common belief and practice. This argument covers military spouses in two ways: (1) discriminatory treatment with military spousal status as a scapegoat for intentional discrimination against another protected class or classes, and (2) discrimination that creates an illegal disparate impact on other protected classes. This argument can be used by a military spouse or practitioner to challenge an explicit denial of employment or employment opportunities based on one's status as a military spouse.

   To be clear, the protections for which I advocate currently exist in theory but are not explicit or utilized in practice. This article argues that military spouses are essentially protected by association under the current legal construct due to the characteristic makeup of military spouses as a group. After making the case for such current protection, I then argue why military spouses should be expressly protected. This protection should emerge not just because the group is an amalgamation of many of the other protected classes, but because military spouses are deserving of their own protection under the law. To that end, I explain how military spouses should be protected by amending the Uniformed Services Employment and Reemployment Rights Act (23) (USERRA) to explicitly protect active-duty spouses in order to combat the discrimination regularly encountered by our nation's military marital partners.

   This article does not specifically deal with discrimination based on gender identity, transgenderism, or transsexualism within the military or among military spouses. Military service was initially...