Veteran unemployment has been an issue of concern over the past several years. The availability of good jobs for returning veterans has become especially important as the nation has come to better understand the difficulty of transitioning from active duty to life at home. Employment takes on even greater importance when it’s considered in light of the epidemic of suicides among veterans, the rate of which is more than double that of nonveterans. 
Recently, states have been enacting programs to assist veterans in finding gainful employment after their military service ends. This article examines recent legislative action some states are taking to empower private-sector companies to combat veteran unemployment.
Veterans in the United States
In 2014, 21.2 million men and women had previously served on active duty in the U.S. armed forces. Like nonveterans, veterans experienced a spike in unemployment during and after the 2008 financial crisis and recession. As a result, both federal and state governments took action in an attempt to improve veterans’ job opportunities. In some states, such assistance has taken the form of an employment preference for veterans in government hiring. The federal government and most states have similar mandates for a government employment preference for veterans.
Seeing the steps taken by the federal and various state governments, private-sector employers may decide that they also want to make a difference in the lives of local veterans by enacting a preference for veterans in their job openings. However, if you implement such a program and your state hasn’t enacted the proper legislation, you may find yourself in trouble with the Equal Employment Opportunity Commission (EEOC).
When challenges have arisen, courts have found that a veterans’ employment preference in government hiring doesn’t violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination in hiring on the basis of race, color, religion, sex, or national origin. However, that doesn’t hold true for private-sector employers.
In 1990, the EEOC issued its “Policy Guidance on Veterans’ Preference Under Title VII,” in which it concluded that a veterans’ hiring preference has a significant adverse impact on female job applicants because of the comparatively low numbers of women in the military. Accordingly, a private-sector hiring preference for veterans is a form of unlawful gender discrimination.
Have things changed?
It’s logical to ask whether the EEOC’s position in 1990 is still justified in light of the greater role women have taken in the military during the intervening 25 years. When the EEOC issued its policy guidance, women accounted for 11.1% of the personnel in the four major branches of the armed forces (Army, Navy, Air Force, and Marine Corps). As of 2008, women made up 14.1% of the four major branches. In 2013, with the Coast Guard included, women accounted for 14.6% of active duty military personnel. However, the increase in female participation in the military hasn’t been sufficient to lead the EEOC to reverse its 1990 policy guidance. Consequently, a private-sector hiring preference for veterans is still considered discriminatory.
Recently, state governments have been taking action to empower private-sector companies to enact a hiring preference for veterans. Unlike a voluntary private-sector preference, government employment preferences for veterans are protected by Section 712 of Title VII, which shields federal, state, territorial, or local laws creating a right of preference for veterans from scrutiny under Title VII. Thus, several states have enacted statutes authorizing private-sector employers to implement voluntary employment preferences for veterans. The rationale for the laws is that the statutory grant of authority moves the voluntary private-sector hiring preference within the scope of Section 712.
Currently, Arizona, Arkansas, Florida, Idaho, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, North Dakota, Oklahoma, Oregon, South Carolina, Virginia, Washington, and Utah have enacted such laws.
The EEOC hasn’t indicated whether it agrees that a voluntary veterans’ hiring preference authorized under state law is covered by Section 712. Nonetheless, until a court or the EEOC decides otherwise, state laws open the door for private-sector employment preferences for veterans.
Bottom line
Despite facing its own challenges with veteran unemployment, many states haven’t passed laws authorizing a private-sector
employment preference for veterans. If you operate in one of those states, private-sector employers should remember that what would otherwise be construed as a generous act of appreciation for veterans is an unlawful act of discrimination in the eyes of the EEOC.
Jeremy Lange is an attorney with Axley Brynelson LLP in the firm’s Madison, Wisconsin, office. He can may be contacted at jlange@axley.com.