New Protected Class: Veterans Added to the California FEHA - Shegerian Law

New Protected Class: Veterans Added to the California FEHA

For active members of the military and veterans, finding and maintaining employment can be difficult. Employers, knowing that active members could be called in for duty at any time may be reluctant to hire and veterans face similar hardships from employers due to social stigmas and high unemployment rates.

This is why California recently took steps to protect both active military members and veterans from employment discrimination. AB 556, a bill introduced in February 2013 to the Assembly Committee on Judiciary, amends California’s Fair Employment and Housing Act (FEHA) by adding “military and veteran status” to it’s list of classes protected form employment discrimination.

The amendment brings federal and state law into congruence. Previously, both these legislative avenues offered variating protection for veterans from job discrimination.

Previous Protection

The AB 556 amendment is essentially an expansion of coverage for the military, and new coverage for veterans. Existing measures already cover active military members. However, supporters of the bill asserted that these existing federal and state legal protections were inadequate, according to the bill’s April 2013 analysis. Nearly all of existing state law, in particular, excluded veterans, who “on average, suffer much higher rates of unemployment” despite hiring preferences built in to federal and state law.

Most existing law, aimed at active military, is concerned with upholding initial hiring and reemployment rights. For instance, the federal Uniformed Services

Employment and Reemployment Rights Act (USERRA) prohibits “denial of initial employment, reemployment, retention of employment, promotion or any benefit of employment” for active military members. Unlike Title VII, the law fails to enumerate protection from discharge or include coverage of the terms and conditions of employment.

Also, existing California law provides protection for active military. It ensures that employers do not operate in prejudice against military members. Specifically, state law provides rights to temporary leave, the absolute right to be restored to a former position or former status of employment after leave and the right to vacation, sick leave, holiday, promotion, reappointment and reemployment equal to before military leave. However, protection from employment discrimination for veterans not in active military, a group hard hit by unemployment and other hardships, was previously scarce in California law.

Remedying Veteran Employment Hardship

Nearly 1.8 million residents of California are veterans, according to the LA Times. That’s about 8% of the entire state population. Among those with veteran status, unemployment rates are high. For veterans of recent wars in Afghanistan and Iraq, the unemployment rate is 10.1%, according to the Bureau of Labor Statistics. Hardest hit are veterans age 24 and younger who must deal with unemployment rates of 24%, compared to 6.8% nationally.

These statistics reveal that veterans, especially young veterans, face significant barriers to employment – barriers that the FEHA amendment could remedy. Many veterans have significant trouble finding employment commensurate with their skills set and often end up having to retrain for positions they already trained for while in the military. Service connected disabilities, disabilities that arise from previous military duty, is also a big issue with veterans in search of gainful employment.

In addition, employers are increasingly susceptible to various stereotypes about veterans. Stigmas of instability, mental health risks and tendencies toward violence perpetuated in the media make it difficult for veterans to successfully compete in the workforce. Even though existing laws, such as the Americans with Disabilities Act (ADA), prohibit it, these assumptions about veterans’ physical and mental ability to perform well on the job can severely hamper the hiring and employment process.

FEHA Benefits

The span of protection the FEHA affords its protected classes is one of the main advantages that veterans and military members will now enjoy due to the new amendment. Under FEHA, employers are precluded from discrimination in all aspects of the employment process, but so are labor unions, training programs and employment agencies. Since much of existing law does not cover these employment related entities, the new amendment opens the door to a broader range of relief for the new class.

Another gain of the amendment is that it expands the types of employment discrimination prohibited for those with military and veteran status. In addition to protection from employment discrimination in every aspect of employment, including terms and conditions, veterans are now entitled to private causes of action against disparate treatment and retaliation under FEHA. They also gain access to claims of association discrimination.

California veterans also now have access to services at the Department of Fair Employment and Housing (DFEH), an agency charged with completing investigations concerning employment discrimination claims. This means, once all administrative remedies are exhausted, California veterans can now turn to the DFEH for a full investigation into claims of unemployment discrimination and even possible representation should the Department determine a violation has occurred.

Protection for Veterans with Disabilities

It’s important to note that many veterans are not only returning to work or looking for new employment. They are also dealing with service related disabililties as well. At the federal level, the ADA is one of the most important laws protecting veterans with disabilities from employment discrimination. At the state level, FEHA offers even broader protection for disabled veterans than the ADA.

Under California law, veterans can receive protection if they suffer from an injury or illness that limits a major life activity. This is a more expansive view than under the ADA which requires “substantial limitation” to a major life activity before the law will apply.

Also, state law definitions of mental disability, physical disability and medical condition are, in many ways, broader than federal law definitions.

Full Legal Protection

With the addition of the new FEHA amendment, veterans with or without disabilities, can expect full protection from employment discrimination. This may reduce a significant barrier to employment for veterans and active military members and help government agencies, legal professionals and veterans themselves address growing unemployment issues in today’s workplace.

Manuela Varela

Relations Manager

Manuela Varela has been with Shegerian & Associates since August 2022. She is responsible for outreach and marketing on behalf of the firm and manages relationships between firms and referring attorneys. She is also responsible for developing business opportunities and affiliations. Manuela graduated from Loyola Marymount University with a degree in Economics and Political Science.