"Other than honorable" discrimination.

• Author: Karin, Marcy L.
• Position: Discriminatory exclusion on military reintegration to civilian life

ABSTRACT

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most comprehensive federal civil rights law that exists related to the workplace. Its goal is to help people who serve in the military reintegrate back into civilian work and remain attached to the workforce. It does so by offering a mix of anti-discrimination protection and labor standards. Despite the promise of robust reemployment rights and post-service assistance, Congress has excluded people with a certain "character of service," including those with "other than honorable" separations, from these protections. This statutory exclusion has a disparate impact on people with service-connected disabilities, servicemembers who have experienced military sexual trauma, and troops with caregiving responsibilities. This Article proposes an end to this discriminatory exclusion along with a way to improve USERRA's accommodation rights. In so doing, the Article explores how this exclusion contravenes the original congressional intent. It also situates the proposal in an over seventy-five-year history of expanding the law after every major conflict on fairness grounds to reflect the military reality of the time. Finally, the Article counters some anticipated critiques of the proposal and places it within a growing series of military supportive movements (such as the emergence of veterans courts and changes to the way post-traumatic stress disorder, traumatic brain injury, and military sexual trauma are handled) as well as ongoing employment-law efforts (like calls to ban the box).

CONTENTS INTRODUCTION I. USERRA'S PROMISE AND CORE PROVISIONS A. USERRA's Protections from Discrimination and Retaliation B. USERRA's Labor Standards II. Fixing the Broken Promise of USERRA for Servicemembers with "Other Than Honorable" Separations A. Removing the Exclusion of People with OTH Separations Based on Gulf War-Era II Experiences 1. An Overview of OTH Separations 2. Service-Connected Injuries and OTH Separations 3. Military Sexual Trauma and OTH Separations 4. Caregiving and OTH Separations 5. Excluding People with OTH Separations Ignores USERRA's Purpose and is Inconsistent with a History of Inclusion and Fairness Amongst Types of Service B. Extending the Reasonable Efforts Requirements to Match the Length of Time for Which Cause Protection is Granted III. ANTICIPATING CRITIQUES AND SITUATING THE PROPOSAL IN LARGER MOVEMENTS A. Including People with OTH Separations Does Not Disrespect Other Servicemembers 1. Other Civil Laws that Support the Military Community Do Not Exclude People with OTH Separations 2. Other Workplace Laws Do Not Deny Coverage Automatically Based on Prior Misconduct B. New Employment Legislation Is Feasible CONCLUSION INTRODUCTION

Samuel Earl Tootle served in the Navy for fourteen years. (1) During that time, he separated from the military three times under honorable conditions. (2) His "fourth and final discharge," however, was the result of a court martial conviction, and deemed dishonorable. (3) Years later, Mr. Tootle quit a civilian job with the Department of Veterans Affairs, one day before he believed he would have been fired for failing to disclose his dishonorable discharge. (4) On July 11, 2012, Mr. Tootle alleged that his separation from work was due to the employer's discrimination against his military service in a claim brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA). (5)

Enacted in 1994, USERRA was meant to address this very situation. The law's goal was to help servicemembers with the process of reintegrating into civilian life after military service, as well as to help them remain attached to the workforce once reemployed. (6) USERRA is the latest iteration of a law that has been around since 1940 to ensure that those who protect our country are not left behind when they return. (7) In theory, the unique mix of protections found in USERRA combines to create a comprehensive civil rights law that responds to a unique government need to encourage service and support those who have chosen to do so. (8) In reality, however, after every war, stories surface about how some servicemembers cannot return to work despite the protections that Congress envisioned. Mr. Tootle's experience is just one such story. In his case, the court found that he did not have standing to proceed as he did not have the correct character of service. (9) Relying on a provision of USERRA that excludes people with "bad" military separations from utilizing the law's protections, the court dismissed his case. (10) His one "bad" discharge took away his right to coverage under USERRA, despite his years of honorable service and three prior honorable separations.

This denial of legal protections based on a bad "character of service" designation is an unnecessary form of congressional discrimination. It is also one that has become increasingly problematic during the three Gulf War-Era II conflicts: Operation Enduring Freedom (OEF), (11) Operation Iraqi Freedom (OIF), (12) and Operation New Dawn (OND). (13) These conflicts have seen a historic number of activations and demobilizations, including the deployment of over 2.1-million servicemembers. (14) They also have included the largest number of Reserve Component (RC) members to be called up for federal service due to changing operational tempos and national-security needs, with one third of those deployed being part-time citizen RC members. (15) During these conflicts, most RC members have been activated for multiple tours of active duty, requiring them to leave civilian work, reintegrate back to a non-military employer, and then leave and reintegrate again. (16) This cycle of leaving and returning to the civilian workforce has been experienced by huge numbers of troops--both regular active duty and RC members. Indeed, according to the Department of Veterans Affairs, from 2014 to 2020, one million servicemembers will join the 2.3-million people who have already transitioned from military service to civilian life since the Gulf War-Era II began. (17) Similarly, the Joint Chiefs of Staff estimate that about 250,000 servicemembers will separate from the military each year from 2015 to 2020. (18) Some of these separated men and women will come back to the jobs they had before answering the call to serve; others will be looking for new employment. When they do, civilian employers are asked to shoulder some of the responsibility of military service by making jobs available to (re)employ the country's service personnel. If employers fail to do so, former military personnel become detached from the civilian workforce and the corresponding economic security and transition assistance that employment offers. This is exactly why USERRA was enacted.

Yet, the experiences of servicemembers during Gulf War-Era II have exposed some cracks with USERRA. Despite the military's promise to help and congressional protection for some, reintegration to civilian life has proved difficult for many, and the unemployment rate for Gulf War-Era II veterans has consistently been higher than both the national average and the numbers for other veterans. (19) Of course, after fifteen years of war and a recession, providing economic stability to transitioning servicemembers is critical. This is especially so for a group of troops who have been categorically denied USERRA coverage, and by extension, access to some of the promised enticements to and benefits of military service.

This group of forgotten troops includes a large number of people who have received "other than honorable" separations from the military. As explained below, these separations have disproportionately impacted people with service-connected injuries like post-traumatic stress disorder and traumatic brain injury, servicemembers who have experienced military sexual trauma, and people with caregiving responsibilities. These troops unnecessarily have been denied access to USERRA's protection and reintegration assistance; the time has come to fix this.

As described below, there is an unusual history of bipartisan, bicameral work to amend USERRA in response to the changing military needs of the time. There is also a history of expanding the law to provide consistency amongst types of service and servicemembers, as well as to ensure that wounded warriors may access the law's protections. Historically, Congress acts after coverage cracks have been exposed. Accordingly, this Article surfaces another crack that has been exposed during Gulf War-Era II--the discriminatory treatment of a class of servicemembers with other than honorable separations. This Article then offers a proposal to fix this crack by amending USERRA to include this group of forgotten troops and give teeth to a requirement that employers work to qualify returning servicemembers for post-service, civilian positions. Part I of this Article explains this history and offers an overview of USERRA's core protections. Part II contains the stories of these forgotten troops, stemming from the explosion of RC and other servicemembers who have returned to civilian workplaces during the Gulf War-Era II conflicts. It also contains the proposal to amend USERRA in response to the experiences contained in the stories. Finally, Part III predicts some critiques of the proposal, which are then countered by situating the proposal in the broader context of ongoing employment law and military supportive movements.

1. USERRA'S PROMISE AND CORE PROVISIONS

   The increase and ultimate drawdown of troops during Gulf WarEra II is not the first time that America has been faced with a large-scale reintegration of former servicemembers to civilian life after a period of military conflict. During World War I, for example, men who left to serve in the military were promised that their civilian jobs would be held for them. (20) Yet, servicemembers who returned home from war could not get...