In an effort to strengthen regulatory requirements related to veteran affirmative action and nondiscrimination, the OFCCP released in April 2011 a Notice of Proposed Rulemaking (NPRM) for the Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans (i.e., Section 4212). This is not yet in final rule form, but it is the last iteration that has been available to the public OFCCP cited the unemployment rate of veterans as one of the reasons for this NPRM, which undoubtedly was the result of the mass return of troops over the last several years, in conjunction with a difficult economic period. As reported by the Bureau of Labor Statistics, the unemployment rate for veterans who served in the military at any time since September 2001 (a.k.a. Gulf War-era II veterans) was 11.5% in 2010. To address this unemployment percentage and other broader veteran issues, there have been various initiatives taken by corporations.
A recent example of a major public initiative is Wal-Mart’s Veterans Welcome Home Commitment, in which the company has pledged to offer a job to any honorably discharged veteran within his or her first 12 months off active duty, with an expectation of hiring over 100,000 veterans over the next five years. We applaud these and similar large scale efforts to recruit qualified veterans.
It is important to note that the voluntary use of veterans’ preferences in hiring is not necessarily free from other EEO consequences when considering its implication for other protected groups. Although veteran preference is an accepted practice in many situations because veterans are a protected group whereas non-veterans are not a protected group, there are still risks to be aware of when it comes to equal opportunity. For one, there could be impact on other protected groups, specifically for women. According to the Department of Veterans Affairs, in 2011 females made up about 8.3% of veterans in the United States and Puerto Rico. The Equal Employment Opportunity Commission (EEOC) has issued policy guidance stating that veteran hiring preferences grant disproportionate advantage to males based on the greater percentage of males serving in the armed forces, as evidenced by the Commission itself and the courts. The concern becomes whether voluntary veteran hiring preference could be used as a defense in cases of gender selection disparities (resulting from veteran preference), as these disparities can reasonably be expected when using veteran preference. Based on the EEOC guidance and case law, if there is a disproportionate impact on women (or another protected group) and the veteran preference is not mandated by statute or sufficiently job-related, the veteran preference cannot be used to explain the impact.
What can contractors do in the face of these concerns, while acting to meet the important initiative of getting veterans into the civilian workforce? A few recommendations include:
- Continuously monitor selection procedures and complete annual disparity analyses on all personnel activity;
- Focus on outreach and recruitment efforts to access qualified pools of applicants;
- Ensure company policies and values align with outreach priorities;
- Reference best practice solutions, such as those presented at a 2013 Society for Industrial & Organizational Psychology conference panel on veteran recruitment and retention (as summarized in https://dciconsult.com/dci-staff-attend-siops-28th-annual-conference-held-in-houston/);
- Consider and document how a veteran preference could serve the legitimate employment goals of your organization;
- Hire the most qualified person for the job!
by Jana Garman, M.A., Associate Consultant and Amanda Shapiro, M.S., Consultant, DCI Consulting Group