'Other Than Honorable' Discrimination
57 Pages Posted: 14 Aug 2016 Last revised: 9 Feb 2017
Date Written: October 1, 2016
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 antidiscrimination 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 75-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).
Keywords: USERRA, military, discrimination, labor standards, military leave, accommodations, employment law, OTH discharge, other than honorable, military sexual trauma, service-connected disability, reasonable accommodations, caregiving, military families, reintegration, ban the box, veterans courts
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