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EEOC pursues service-related harassment

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in Discrimination and Harassment,Employment Law,Human Resources

The EEOC is putting employers on notice that it will vigorously enforce the rights of employees who serve in the National Guard or military reserves or who are veterans. It joins the Department of Labor in pushing employers to provide current and former members of the military with the rights they are entitled to under the ADA, the FMLA and USERRA, the Uniformed Services Employment and Reemployment Rights Act.

Last year, the EEOC filed an ADA lawsuit against a Wyoming employer for allegedly allowing a supervisor to harass a returning solider over injuries that probably were service-related. In late March, the commission has since brokered a settlement with the employer, which will pay more than $75,000.

The case: Jason, a veteran with post-traumatic stress disorder, worked for Mine Right Technologies. According to the EEOC’s lawsuit, he had to endure regular harassment about his condition from his supervisor. The man allegedly called Jason a “psycho” in front of co-workers. He referred to Thursdays as “Psycho Thursday” because that was when Jason went to therapy sessions to ease symptoms of his PTSD. Jason eventually quit to avoid further harassment.

In addition to paying the money, Mine Right Technologies’ settlement agreement requires the company to write a letter of apology to Jason and give him a positive employment recommendation. It must also train its employees on how to prevent disability discrimination.

Final note: Remember, both the FMLA and USERRA require employers to rehire returning military members once they recover from injuries suffered in the line of duty, including PTSD. (In addition, the FMLA grants extensive leave rights for employees who need time to care for family members who have been injured in the line of duty.)

Military-connected employees don’t need confirmation from the Department of Veterans Affairs that their condition is service-related. It is enough for their regular physician to state that the medical condition is service-related.

Read our white paper “USERRA: An Employer’s Guide to Military Leave Law” at www.theHRSpecialist.com/whitepaper.

{ 1 comment… read it below or add one }

Tom Harwood April 15, 2018 at 1:20 pm

I am not an attorney and am not giving legal advice…you should consult an attorney to correct your article (I recommend attorneys Kathryn Piscitelli and Edward Still who explain the error you made in the “USERRA Manual: Uniformed Services Employment and Reemployment Rights” Thompson Reuters, April 2017. You wrote “USERRA require[s] employers to rehire returning military members once they recover from injuries suffered in the line of duty, including PTSD”. In “The USERRA Manual” the authors explain why this might be a gross misstatement of the rights guaranteed to disabled veterans under USERRA. The law requires employers to rehire all eligible veterans (subject to exceptions for “changed circumstances” of the employer, “undue hardship”, or veterans who held “brief, nonrecurrent” employment). The only criteria for eligibility are (1) the veteran gave notice of their absence prior to leaving (2) does not exceed five years of non-exempt cumulative service, (3) upon completion of service, timely notify their employer of intent to return with an exception that the veteran may exceed the timely notification requirements if they are hospitalized or convalescing, at the veteran’s sole discretion. This exception to the timely return requirements is often twisted, as you have done in this article, into the veteran must recover from their illness or injury prior to becoming eligible for reemployment. There is no such requirement in the law. In fact, there is an entire section of the law that mandates how to treat eligible disabled veterans who present themselves for reemployment. All eligible veterans must be promptly reemployed into the position they would have held but for their absence for service, including disabled or otherwise unqualified veterans (qualifications are not relevant prior to reemployment). For disabled veterans, the “Disability Scheme” for placement requires employers to exhaust all measures short of undue hardship to accommodate the disability and help the veteran to become qualified for this position. If this fails, the veteran must be given a position equivalent in seniority, status, and pay for which they can become qualified without undue hardship, and if this fails, then a position that is the nearest approximation in terms of seniority, status, and pay to the equivalent position for which the veteran can become qualified without undue hardship.
In my opinion, these protections are vitally important to our ability to defend the nation and it’s employers with an all-volunteer uniformed service. Employers have a significant obligation to disabled veterans under the law, but should willingly rise above the floor of USERRA and other laws to prevent unemployment or ruined careers of our heroes who have not quite yet made it to Arlington Cemetery to join their brothers and sisters who made the ultimate sacrifice. The veteran with PTSD had no doubt come close many times to permanent residence in that hallowed ground, and the employer who mistreats them in any way, including demanding they recover prior to reemployment, in my opinion, is desecrating those graves.

I appreciate your consideration for correction of the article.

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