Veterans from the post-9/11 era are having a hard time finding work in Maryland, with an unemployment rate more than double the state’s overall rate. A bill to help struggling veterans secure work passed the Maryland House of Delegates in February by a nearly unanimously vote and is currently under consideration in the state Senate. If enacted, the bill would authorize, but not require, private employers in Maryland to grant veterans a preference in hiring and promotions. Maryland’s legislation follows voluntary veteran preference laws that have been in enacted in several other states, including Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, Texas, Utah, Virginia and Washington. Due to inconsistencies with Title VII of the Civil Rights Act of 1964, however, the state voluntary veteran preference laws may violate the federal antidiscrimination laws protecting women in the workplace.
Although the United States military has, in recent years, opened itself to an increase in service among women, the vast majority of veterans today are male. According to the Department Veterans Affairs, men constitute more than 90% of the veterans in the United States. Given the gender disparity in the veteran population, veterans’ preference requirements have a disparate negative effect on women in the workforce.
Unlike some federal and state laws that require that preference be given to veterans in employment matters, Maryland’s legislation merely authorizes employers to voluntarily adopt veteran preferences and exempts those programs from state and local equal employment opportunity laws. Employers complying with mandatory preference requirements are shielded from disparate impact liability under Title VII by virtue of a safe-harbor in the statute: “Nothing contained in this title shall be construed to repeal or modify any Federal, State, territorial, or local law creating special rights or preferences for veterans.”
When it comes to voluntary employment preferences for veterans, like those that would be authorized by the Maryland legislation, the federal water becomes much murkier. In 1990, the U.S. Equal Employment Opportunity Commission issued a policy guidance on Veterans’ Preferences Under Title VII that confirmed compliance with mandatory preference requirements did not violate Title VII. The EEOC noted, however, that when employers voluntarily adopt preferences for veterans the decision is “not shielded from scrutiny under Title VII.” The 1990 guidance went so far as to state the EEOC will presume that voluntary veterans preferences have an adverse impact on women and the EEOC’s current Compliance Manual affirms the agency’s view that voluntary veterans preferences may violate federal gender discrimination laws.
Employers subject to federal law (those with more than fifteen employees) seeking to increase employment opportunities for veterans should think twice about adopting overt preference programs without first seeking the advice of counsel, even in those states that permit them given the questionable validity of such programs under federal law. Employers may wish to consider alternative methods to increase veteran participation in their workforces, including participating in veteran-based job fairs, recruiting from veteran organizations and adopting preferences for disabled applicants (given the rise in military service-related disabilities).