Can a Protected Veteran Be Fired?

Understanding the legal framework surrounding protected classes holds immense importance for any human resources department and organization, especially with regards to layoffs or firing employees. Yet, one category often overlooked in these discussions is that of ”protected veterans.”

In this article, we will clarify the concept of a protected veteran and shed light on the laws and regulations established to safeguard individuals falling under this designation in order to fully answer the question, “Can a protected veteran be fired?”

It is essential to note that we are not legal professionals, and the content of this post should not be construed as legal advice. Always collaborate closely with your legal team whenever issues concerning protected classes arise within your organization to ensure compliance with all pertinent local, state, and federal regulations.

With that in mind, here’s an overview of what constitutes a protected veteran, the laws that govern their protection, and related considerations.

To grasp the concept of a protected veteran, it is crucial to trace back to 1974 when the Vietnam Era Veterans’ Readjustment Act (VEVRAA) became law. Consulting the primary source is always advisable for insights into such matters. In this case, that would be the US Department of Labor (DOL), particularly the Office of Federal Contract Compliance Programs (OFCCP).

As the DOL states, “The Office of Federal Contract Compliance Programs (OFCCP) enforces the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. This law, sometimes referred to as VEVRAA, requires employers doing business with the Federal Government to take steps to recruit, hire and promote protected veterans. It also makes it illegal for these companies to discriminate against protected veterans when making employment decisions on hiring, firing, pay, benefits, job assignments, promotions, layoffs, training, and other employment related activities.”

This mirrors the standard practice in other job-related regulations, which stipulate that employers must not let the differences in protected classes influence their decisions, including those related to protected veteran status.

The Department of Labor (DOL) outlines that achieving protected veteran status entails meeting various criteria. Broadly, the classification revolves around four distinct categories: disabled veterans, recently separated veterans, armed forces service medal veterans, and others (pertaining to ‘campaign badges’).

Let’s dive further into each protected veteran category, the definitions of which are all sourced directly from the DOL:

“A veteran who served on active duty in the U.S. military and is entitled to disability compensation (or who but for the receipt of military retired pay would be entitled to disability compensation) under laws administered by the Secretary of Veterans Affairs, or was discharged or released from active duty because of a service-connected disability.”

“A veteran separated during the three-year period beginning on the date of the veteran’s discharge or release from active duty in the U.S. military.”

“A veteran who, while serving on active duty in the U.S. military, participated in a U.S. military operation that received an Armed Forces service medal.”

“A veteran who served on active duty in the U.S. military during a war, or in a campaign or expedition for which a campaign badge was authorized under the laws administered by the Department of Defense.”

The term “protected veteran” typically refers to a veteran who is covered by specific anti-discrimination laws and regulations, such as the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). Protected veterans are safeguarded against employment discrimination based on their veteran status, and they may be entitled to certain benefits and accommodations under these laws.

On the other hand, an “unprotected veteran” is not covered by these specific anti-discrimination laws or regulations. This may include veterans who have not served during specified wartime periods or who have not met other criteria outlined in the relevant laws. Consequently, they may not receive the same legal protections against employment discrimination based on their veteran status as protected veterans.

It’s essential to note that the distinction between protected and unprotected veterans is based on legal definitions and eligibility criteria outlined in relevant legislation. All veterans deserve respect and fair treatment in the workplace, but the legal protections afforded to them may vary depending on their status under applicable laws.

Being classified as a protected veteran ensures protection against discrimination based on military service. Additionally, if you acquired a disability during your service, there are laws protecting veterans with service-connected disabilities that require reasonable accommodations be provided to facilitate your continued employment.

According to the Department of Labor (DOL), a “reasonable accommodation” refers to adjustments or modifications made to the workplace or job duties, enabling a disabled veteran to fulfill job responsibilities or enjoy employment benefits and privileges. Importantly, such accommodations do not alter essential job functions. Furthermore, employers are obligated to provide reasonable accommodations to enable disabled veterans applying for a job to do so effectively.

Below are examples of reasonable accommodations outlined by the DOL:

1. Accessible print formats (e.g., large print, Braille, audiotape)
2. Modified work schedules
3. Sign language interpretation
4. Conducting meetings and activities in accessible locations
5. Adjusting work environments for better accessibility (e.g., modifying offices and other spaces)

While this list is not exhaustive, it offers insight into the nature of “reasonable accommodation” and underscores its inherent flexibility.

When selecting which employees to lay off or terminate, it’s important to keep these legal definitions and parameters in mind. Protected veterans, like individuals belonging to other protected classes, are safeguarded against discrimination in employment. However, being a protected veteran does not guarantee immunity from termination or any adverse employment actions. Employment decisions must still be made based on legitimate, non-discriminatory reasons.

If a protected veteran is terminated for reasons unrelated to their veteran status and in accordance with the organization’s policies and applicable laws, the termination would likely be considered lawful. However, if termination or any adverse employment action appears to be based on the individual’s veteran status, it may constitute unlawful discrimination and could be subject to legal challenge.

Here are examples that illustrate various forms of discrimination that veterans may encounter in the workplace, highlighting the importance of enforcing anti-discrimination laws and promoting a supportive and inclusive work environment for veterans.

Refusal to hire: An employer explicitly refuses to hire a qualified applicant solely because of their veteran status, despite being well-suited for the position.

Unfair treatment: A veteran employee is subjected to different standards or harsher disciplinary actions compared to non-veteran colleagues, solely due to their veteran status.

Hostile work environment: A workplace culture is created or tolerated where derogatory comments, jokes, or harassment targeting veterans are prevalent, creating a hostile environment for veteran employees.

Failure to accommodate: An employer fails to provide reasonable accommodations for a veteran with disabilities acquired during military service, making it difficult or impossible for them to perform their job duties.

Termination or demotion: A veteran is terminated, demoted, or denied promotions solely based on their veteran status, rather than performance-related factors.

Retaliation: An employer retaliates against a veteran employee who asserts their rights under veteran protection laws by subjecting them to adverse actions such as demotion, termination, or unfavorable work assignments.

Individuals with protected veteran status can file a complaint if they perceive discrimination or if their employer fails to provide accommodations as outlined in the DOL guidelines. Filing a complaint is a straightforward procedure, typically involving the completion of a form and its submission to the Office of Federal Contract Compliance Programs (OFCCP). While we won’t dive into the entire filing process in this article, further information can be found here.

It’s important to emphasize that employers are prohibited from retaliating against protected veterans who file complaints. As the OFCCP explains, “It is unlawful for your employer to retaliate against you for filing a complaint or participating in an investigation. OFCCP’s regulations prohibit harassment, intimidation, threats, coercion, or retaliation for asserting your rights.”

If discrimination is found by the OFCCP, various outcomes can result for the protected veteran. The specific remedy varies depending on the circumstances of each case.

According to the OFCCP, “You may be entitled to a remedy that restores you to the position you would have been in if the discrimination had never occurred. This could include being hired, promoted, reinstated, or reassigned. You may also be eligible for back pay, front pay, a salary increase, or a combination of these remedies.”

If the company is found to have engaged in discriminatory practices, they may face disqualification from receiving future federal contracts. Additionally, the DOL has the authority to terminate existing contracts and take further appropriate actions.

We’ve now thoroughly answered the question, “Can a protected veteran be fired?” While often overlooked, knowledge of the laws and regulations protecting individuals with veteran status is essential for fostering supportive and inclusive workplaces.

Here are the key takeaways:

• Protected veterans are individuals covered by specific anti-discrimination laws, safeguarding them against discrimination based on their veteran status.
• Laws such as the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and the Uniformed Services Employment and
• Reemployment Rights Act (USERRA) provide protections for protected veterans in employment.
• Protected veteran status is determined based on various criteria, including disability status, recent separation from service, receipt of armed forces service medals, and participation in military campaigns or expeditions.
• Employers are required to provide reasonable accommodations to disabled veterans to enable them to perform job duties effectively.
• Various forms of discrimination against veterans include refusal to hire, unfair treatment, hostile work environments, failure to accommodate disabilities, and termination or demotion based on veteran status.
• Protected veterans have the right to file complaints with the Office of Federal Contract Compliance Programs (OFCCP) if they experience discrimination or lack of accommodations. Employers are prohibited from retaliating against veterans who file complaints.
• If discrimination is found, remedies may include reinstatement, back pay, front pay, or other forms of compensation. Companies found engaging in discriminatory practices may face disqualification from future federal contracts and termination of existing contracts by the Department of Labor (DOL).

If you are looking for more guidance for your upcoming layoff or other reduction event, Careerminds’ outplacement services can help you navigate this difficult process and provide the best support for your impacted employees. Click below to speak with one of our experts and learn more about how we can partner with you.

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Rebecca Ahn

Rebecca is a writer, editor, and business consultant with over 10 years of experience launching, managing, and coaching small to midsize companies on their business, marketing, and HR operations. She is a passionate people advocate who believes in building strong people, teams, and companies with empowering culture, content, and communication that facilitates meaningful results at every level and touchpoint. In her spare time, Rebecca is an avid traveler and nomad who also enjoys writing about travel safety and savvy. Learn more on her LinkedIn page.