Veteran or military status is defined 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.1

However, employers are permitted to inquire about military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.2

Additional laws extend certain protections to individuals based on their military status. For example, California’s Military and Veterans Code section 394 prohibits employers from discriminating against members of the armed forces, and protects servicemembers from hostile work environments in their civilian jobs.

Under federal law, the Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employment discrimination against a person on the basis of:

• Past military service
• Current military obligations
• Intent to serve

An employer must not deny initial employment, re-employment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future military service obligation.

In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation. For more information on USERRA, visit the Department of Labor’s USERRA compliance page.

To avoid liability, the employer will have to show that it would have taken the same action without considering the military service. But an employer can’t justify its adverse employment decision on the basis of the servicemember’s absence.

For example, in one federal case, a member of the Air Force Reserve filed a lawsuit against his employer claiming, in part, that he was denied a promotion due to his military service. His employer is the Department of the Air Force.3

The employee’s supervisor submitted a request to promote him, but shortly after this request was made, the employee received military orders to begin active service. Upon his return, his promotion was never processed and a supervisor allegedly told him it was because he was absent too often due to his reserve duties, a somewhat surprising position given that he works for the Air Force.

The Air Force also argued that he wasn’t eligible for the promotion because he wasn’t available for an optional in-person desk audit of the position while he was out on military leave.

The court found in favor of the employee, ruling that an employer cannot escape liability by claiming it was only discriminating against the employee because of their absence when that absence was based on military service. The court took strong exception to the Air Force’s justification that it denied the promotion because the employee wasn’t available for the interview. The employee wasn’t available precisely because he was performing his military obligations — the exact type of obligation USERRA is meant to protect.

For more information on rights of employees returning from leave, see Military Service Leave (USERRA).

1. Govt. Code sec. 12926(k)