BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 556 (Salas)
As Amended April 11, 2013
Hearing Date: June 11, 2013
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Fair Employment and Housing Act: Military Veterans
DESCRIPTION
This bill would incorporate into the Fair Employment and Housing
Act protection from discrimination and retaliation for military
employees and veterans.
BACKGROUND
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, prohibit discrimination
in employment, housing, public accommodation and services
provided by business establishments on the basis of specified
personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes
have been amended to include other characteristics such as
medical conditions, marital status, and sexual orientation.
Also over time, other statutes were amended to reflect the
state's public policy against discrimination in all forms.
The federal Uniformed Services Employment and Reemployment
Rights Act (USERRA) provides employment discrimination
protection for a person who is an active duty military or a
veteran and has an obligation to perform service in a uniformed
service (United States Armed Forces, United States Armed Forces
Reserve, the United States National Guard). (38 U.S.C. 4311.)
The California Military and Veterans Code incorporates this
discrimination protection, and further extends it to members or
veterans of the California National Guard. (Mil. & Vet. Code
Sec. 394.)
(more)
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This bill would further protect members of the military and
veterans from employment discrimination and retaliation on the
basis of military and veteran status by including "military and
veterans status" on the list of characteristics that, if used as
the basis for an adverse employment action, is prohibited
discrimination under FEHA.
CHANGES TO EXISTING LAW
Existing federal law , the Uniformed Services Employment and
Reemployment Rights Act (USERRA), prohibits discrimination and
retaliation against active duty military and veterans on the
basis of the person's military membership, application for
membership, performance of service, application for service, or
obligation. (38 U.S.C. 4311.)
Existing federal law prohibits an employer's use of the
employee's military membership, performance of service,
application for service, or obligation as a motivating factor as
cause for an adverse employment decision against the employee.
(38 U.S.C. 4311.)
Existing federal law , the USERRA, provides that any person whose
absence from a position of employment is necessitated by reason
of service in the uniformed services shall be entitled to
specified reemployment rights and benefits and other employment
benefits of this chapter. (38 U.S.C. 4312.)
Existing law prohibits discrimination by a person, public
entity, or official against any officer, warrant officer, or
enlisted member of the military or naval forces because of that
membership, and prohibits prejudice or injury by any person,
employer, or officer or agent of any corporation, company, or
firm with respect to that member's employment, position or
status or be denied or disqualified for employment by virtue of
the membership. (Mil. and Vet. Code Sec. 394.)
Existing law prohibits an employer or officer or agent of any
corporation, company, or firm, or other person, from: (1)
discharging any person from employment because of the
performance of any ordered military duty or training or by
reason of being an officer, warrant officer, or enlisted member
of the military or naval forces of this state; (2) preventing
that person from performing any military service or from
attending any military encampment or place of drill or
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instruction he or she may be called upon to perform or attend by
proper authority; (3) using prejudice or harm against an
employee in any manner in his or her employment, position, or
status by reason of the employee's performance of military
service or duty or attendance at military encampments or places
of drill or instruction; or (4) dissuading, preventing, or
stopping any person from enlistment or accepting a warrant or
commission in the California National Guard or Naval Militia by
threat or injury to the employee in respect to his or her
employment, position, status, trade, or business because of
enlistment or acceptance of a warrant or commission. (Mil. and
Vet. Code Sec. 394.)
Existing law prohibits a private employer or officer or agent of
any corporation, company, or firm, or other person, from
restricting or terminating any collateral benefit for employees
by reason of an employee's temporary incapacitation (any period
of incapacitation of 52 weeks or less) incident to duty in the
National Guard or Naval Militia. (Mil. and Vet. Code Sec. 394.)
Existing law provides that a violation of the above state
employment protections is a misdemeanor, and that any person
violating any of these provisions is liable for actual damages
and reasonable attorney's fees incurred by the injured party.
(Mil. and Vet. Code Sec. 394.)
Existing law provides that a covered employee has an absolute
right to be restored to the former office or position and status
formerly had by him or her in the same locality and in the same
office, board, commission, agency, or institution of the public
agency upon the termination of temporary military duty. If the
office or position has been eliminated during the employee's
absence, the employee must be reinstated to a position of like
seniority, status, and pay if a position exists, or if no
position exists, the employee will have the same rights and
privileges that he or she would have had if he or she had
occupied the position when it ceased to exist and had not taken
temporary military leave of absence. (Mil. and Vet. Code Sec.
395.)
Existing law entitles any public employee, who has been in the
service of the public agency from which a leave is taken for a
period of not less than one year immediately prior to the date
upon which a temporary military leave of absence begins, to
receive the same vacation, sick leave, and holiday privileges,
and the same rights and privileges to promotion, continuance in
office, employment, reappointment to office, or reemployment
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that the employee would have enjoyed had he or she not been
absent therefrom. (Mil. and Vet. Code Sec. 395.)
Existing law, the Fair Employment and Housing Act prohibits
discrimination in housing and employment on the basis of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital
status, sex, age, or sexual orientation. (Gov. Code Sec. 12920
et seq.)
This bill would add "military or veteran status" to the list of
characteristics on which basis a person may not be discriminated
against in employment.
This bill would define "military or veteran status" as a member
or veteran of the United States Armed Forces, United States
Armed Forces Reserve, the United States National Guard, and the
California National Guard.
This bill also would make technical and conforming changes to
various code sections.
COMMENT
1. Stated need for the bill
The author writes:
Veterans of the United States Armed Forces are currently not
protected from discriminatory hiring practices that may come
as a result of incorrect assumptions regarding the prevalence
of Post-Traumatic Stress Disorder, personality issues,
insensitivity to military culture, and because military
applicants are non-traditional applicants. Employers express
concern over military members stating that they are too
non-traditional, too old and will not take orders from younger
civilians, and that they have fallen behind their civilian
counterparts.
This [b]ill would remedy these injustices and would allow
Veterans to attain or not attain employment based solely on
their merit instead of prejudice and discrimination.
Veterans already have a difficult time readjusting to civilian
life from which they have been temporarily displaced. In
October of 2012, the unemployment rate for young veterans in
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California peaked at 43 [percent]. Many Veterans returning
from foreign conflicts of the past decade are at risk of
homelessness as a result of not being able to secure steady
employment.
This bill would allow Veterans to secure and maintain
employment without discrimination from employers, and agents,
or any other person. Rather than amending a carbon copy of
the [FEHA] language into the Military and Veterans [C]ode,
including "military and veteran status" as a protected group
in FEHA would provide a more clear and substantive framework
for protecting Military and Veterans from discrimination and
harassment. Current law regulating anti-military and veteran
discrimination is silent on discrimination by labor
organizations, employment agencies, apprenticeship programs
and any person or entity who aids, abets, incites, compels, or
coerces the doing of a discriminatory act, as well as
retaliation against those who report.
2. Providing discrimination and retaliation protection for
characteristics associated with military or veteran status
Although existing federal and state law provide discrimination
and retaliation protection for members of the military and
veterans and duties associated therewith, this bill would
further provide discrimination and retaliation protection for
characteristics associated with military or veteran status.
According to the author, existing state and federal laws
discourage employment discrimination against military members
and veterans, but the discrimination still persists. The author
notes that active members of the military and National Guard are
protected from employment termination based on their
obligations. However, the author argues that there are still
many instances where the burden of obligations is not the direct
cause of the express act of discrimination or wrongful
termination based on discrimination, which fall into loopholes
that need to be closed. Additionally, there are many situations
covered in the Fair Employment and Housing Act (FEHA) that are
not covered under state and federal anti-military discrimination
laws. For example, the author asserts that non-job related
inquiries about the prospective military member or veteran can
be used by the employer to circumvent the FEHA prohibitions
against asking about disabilities, including post-traumatic
stress disorders (PTSD) and traumatic brain injuries (TBI).
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A recent Los Angeles Times article demonstrates an example of
the challenges experienced by veterans seeking employment as
follows:
Veterans' advocacy groups, and many unemployed veterans, say
civilian employers don't always appreciate veterans' skills
and maturity. They point out that this is the first
generation of employers who have no widespread military
experience and thus no inherent appreciation for what the
institution can provide.
Further, the increased military and media attention given to
[PTSD] and [TBI] has had the effect of stigmatizing veterans,
advocates say. Some employers fear that soldiers diagnosed
with these conditions are prone to violence or instability.
The unemployment rate for veterans of Afghanistan and Iraq is
10.3 [percent], according to the Bureau of Labor Statistics.
For veterans age 24 and under, the rate is 29.1 [percent], or
12 points higher than for civilians the same age. That
compares with 8.2 [percent] unemployment nationally, and 7.5
[percent] for all veterans.
A survey this year by the advocacy group Iraq and Afghanistan
Veterans of America found that a quarter of its members could
not find a job to match their skill level, and half said they
did not believe employers were open to hiring veterans.
(Zucchino, Unemployment is a Special Challenge for Veterans
(Apr. 25, 2012) Los Angeles Times
[as of May 30, 2013].)
One year later, a CNN article, commenting on recent U.S. Bureau
of Labor Statistics report, noted that the unemployment rate for
veterans had dropped, but veterans were still lagging behind
non-vets in the job market:
The unemployment rate for veterans who have served in the U.S.
military since the terrorist attacks of Sept. 11, 2001 dropped
by 2.2 percentage points in 2012, to 9.9 [percent]. But that's
still higher than last year's 7.9 [percent] unemployment rate
for nonveterans, the report said.
Army veteran Marcel Rowley of South Lake Tahoe, Calif., who
served in Afghanistan in 2006 and 2007, said that he had a
difficult time trying to secure part-time employment while
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going to school on the GI Bill. He said that as soon as he
mentioned the time period during which he served, the job
interview would "taper off," as the interviewer realized he
was a war veteran.
"With all the ski resorts out here, you would think it would
be fairly simple [to get a job,]" he said. "But because of
PTSD, companies won't hire veterans. It's because they're
afraid they're going to have an episode in the work place."
(Smith, Veteran unemployment dropped to 9.9 [percent] in 2012
(Mar. 20, 2013) CNN Money
[as of June 1, 2013].)
The issue presented by this bill is whether military and veteran
status should be included in the list of characteristics
provided under FEHA and prohibited from employment
discrimination and retaliation. Existing federal and state laws
provide anti-discrimination and anti-retaliation protection for
the military and veterans based upon their membership in and
obligations to the military. However, these laws do not specify
that military members and veterans should not be discriminated
against based upon other aspects associated with being current
or former military members.
The Afghanistan and Iraq conflicts have resulted in a large
population of military members and veterans with PTSD and TBI.
As of September 2011, mental health diagnoses were the second
largest diagnostic category among OCO veterans who had received
health care services from VHA, affecting 52 percent of those
patients. (Mental health issues were second only to
musculoskeletal diagnoses.) (Congressional Budget Office, The
Veteran's Health Administration's Treatment of PTSD and
Traumatic Brain Injury Among Recent Combat Veterans (Feb. 2012)
Congress of the United States
[as of June 1, 2013] at p. 3.)
Unfortunately, with increased public awareness of the traumas
experienced by recent military members and veterans, employers
have an increased concern about the psychological, behavioral,
cognitive, and emotional trauma some military members
experienced in their military duties and their ability to work
for the employer. As shown in the Los Angeles Times and CNN
articles, these concerns apparently have turned into a
justification by some employers to discriminate against military
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members and veterans, which in turn has contributed to high
unemployment for these members and veterans.
Presumably, this bill seeks to curb the stigmatization that
military members and veterans may have characteristics
associated with recent military experience (i.e., PTSD and TBI).
In order to protect military members and veterans from
discrimination and retaliation based on employer perceptions of
these characteristics, which may or may not actually apply to
the military member or veteran, this bill would prohibit an
employer from basing employment decisions on military or veteran
status. Arguably, it is appropriate to provide such protections
to these employees who otherwise may be denied employment based
on incorrect assumptions that the employee has PTSD, would act
inappropriately, or may not be able to adequately perform the
tasks required by the job. To provide these military members
and veterans a level playing field with non-military job
applicants and employees, this bill would require employers to
make hiring and other employment decisions based on the
applicant's or employee's abilities, rather than perceptions
about their potential inabilities.
It is important to note that existing federal and state law
entitles veterans to preferential treatment in hiring for
government jobs and promotions. This bill, by prohibiting
adverse employment decisions based on discriminatory motivations
using military or veteran status, would not be in conflict with
these preference laws because it specifically declares that
nothing in the bill should be interpreted as preventing the
ability of employers to identify members of the military or
veterans for the purpose of awarding a veteran's preference as
permitted by law.
Support : American Legion - Department of California; AMVETS -
Department of California; California Association of County
Veterans Service Officers; California State Commanders Veterans
Council; VFW - Department of California; Vietnam Veterans of
California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : SB 404 (Jackson) would add
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"familial status" to the list of characteristics that are
prohibited bases of discrimination under the employment
provisions of the Fair Employment and Housing Act.
Prior Legislation :
SB 36 (Baca, Ch. 201, Stats. 1999) requires any city, county, or
city and county, general law or chartered, when it has
established a civil service system, to implement a veterans'
preference system, or adopt a resolution identifying reasons
that the local agency does not do so.
SB 1150 (Fletcher and Burns, Ch. 123, Stats. 1945) requires
military veteran preference on civil service employment lists.
Prior Vote :
Assembly Committee on Judiciary (Ayes 10, Noes 0)
Assembly Committee on Labor and Employment (Ayes 7, Noes 0)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
Assembly Floor (Ayes 70, Noes 0)
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