MINNESOTA ENACTS QUESTIONABLE STATUTE ON VOLUNTARY PREFERENCE FOR VETERANS IN THE PRIVATE SECTOR


by Art Gutman Ph.D., Professor, Florida Institute of Technology



The law was signed by the Governor of Minnesota on April 18, 2012 (see https://www.revisor.mn.gov/laws/?id=186&doctype=chapter&year=2012&type=0).  It permits private, nonpublic employers to grant preference to veterans in hiring and promotion.  It also applies to spouses of deceased or disabled veterans, but that is a lesser issue.  The potential problem is that voluntary implementation of preferences for non-disabled veterans by private, nonpublic entities contradicts Policy Guidance N-915.056 on Veterans' Preference Under Title VII issued on 8/10/90. This guidance may be viewed at  http://www.eeoc.gov/policy/docs/veterans_preference.html#fn10.

The guidance notes that Title VII does not apply to veterans’ preference by state agencies when based on a combination of both federal and state law.  Neither does it apply to state agency policies of applying extra credit to veterans on civil service exams.  However, the EEOC notes that “where an employment preference is conferred upon veterans on the employer's own initiative and is not mandated by statute, the discriminatory impact of the preference is not shielded from scrutiny under Title VII.”  The guidance also states that:

Based on recent national statistics, it is the Commission's position that voluntarily adopted veterans' preferences have an adverse impact on women. Accordingly, in charges raising this issue, the Commission will presume the existence of adverse impact. The presumption may be rebutted, however, where an employer shows that the preference does not adversely affect female applicants or employees based on either more narrowly drawn statistics (e.g., regional or local statistics) or its own applicant flow data/workforce statistics.

The EEOC supports its viewpoint on case law in which voluntary veterans preference was deemed to produce adverse impact on women, most notably Krenzer v. Ford [429 F. Supp. 499 (D.D.C. 1977)], Bailey v. Southeastern Area Joint Apprenticeship Committee [561 F. Supp. 895 (N.D. W.Va. 1983)], and Brown v. Puget Sound Electrical Apprenticeship & Training Trust [732 F.2d 726 (9th Cir. 1984)], a case in which the Supreme Court denied certiorari [469 U.S. 1108] (1985).  For example, in Bailey, the court ruled that:

Title VII, unlike various other statutes and government regulations which have been enacted since World War II, does not accord veterans any employment preferences. Rather, Title VII seeks to secure equality of employment opportunity for members of certain protected classes. Inasmuch as veterans are not a protected class under Title VII, the statute leaves no room for a veteran preference which has a disparate impact on a protected class, e.g., women.

Additionally, the guidance notes that voluntary veterans’ preference may also result in  disparate treatment.  For example, in Woody v. City of West Miami [477 F. Supp. 1073 (S.D. Fla. 1979)] the court ruled that the city’s policy of hiring retired 20-year service veterans as police officers was not justified by business necessity and was a pretext for sex discrimination because (1) the policy was not uniformly applied, (2) it was not necessary to the safe and efficient operation of the police department, (3) it was quickly discarded when the lawsuit was filed, and (4) the city hired its first policewoman, a non-veteran, immediately after the suit was filed.

A final point to note is that the guidance of disparate treatment also applies even when there is a valid law 

(see Commission Decision No. 74-64, CCH EEOC Decisions (1983).

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