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The Rights Stuff Forum: Minnesota's Veterans

Minnesota's Veterans: The Road Back Home

From the Rights Stuff Newsletter, Winter 2010

Welcome home. Now what?

Discrimination is illegal. But it happens — and when it does, it's only one barrier facing a generation of Minnesota servicemembers who are confronting a new range of challenges. In this Rights Stuff Forum, we present a selection of viewpoints on the challenges facing our returning servicemembers, from employment to family issues, from discrimination to post-traumatic stress.

Note: The information and interviews in this section appeared in the Winter 2010 edition of the Department of Human Rights newsletter, The Rights Stuff. The newsletter includes additional material related to this topic. The PDF version features additonal articles on veterans issues, including interviews on how other states protect military status, resources for veterans and further reading. The views expressed are those of the individuals interviewed and not necessarily those of the Minnesota Department of Human Rights.

Introduction & Overview

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They return from Basrah and Baghdad, some after two, three, or four combat tours in Iraq or Afghanistan, to a country that says welcome home. And while the welcome may not be as loud and jubilant as it was for those who came back to parades and a booming economy after World War II, the cheers are at least better than the jeers and neglect that greeted many Vietnam vets returning to a country that seemed at war with itself.

It is clear that the global war on terror has been particularly hard on Minnesotans and their families. Since 2001, more than 19,000 Minnesota National Guard members have been deployed in more than 33 countries. "Minnesota per capita has one of the highest rates of service in this conflict of any state," notes Minneapolis attorney Brockton Hunter, who is part of a group proposing recommendations on veterans' issues to the Legislature this session. The Minnesota Guard's 34th Infantry Division, the Red Bulls, have been heavily deployed. "One brigade from that division has served the longest continuous tour in combat in Iraq of any U.S. military unit, period," Hunter adds. Now they've come home, about 1,200 of them over the past few weeks. In total, about 2,100 soldiers and airmen from nine different Minnesota National Guard units will be returning this spring and summer from deployments overseas.

The number one worry: Jobs

It can be difficult to resume civilian life, even when the economy is strong. But with employment in Minnesota at well over 7 percent, finding a job is already at the top of many soldier's list of worries. The 1,200 who have just returned "are coming back to a job market that is considerably worse than what they left," says Jim Finley, Director of Veterans Employment Services for the Minnesota Department of Employment and Economic Development, which is providing resources to assist them in finding employment.

But despite a range of programs involving state government and business that want to help, the prospects are still bleak. "One third of the soldiers coming back this month are not going to have a job," says SFC Melanie Nelson, Director of Marketing and Communications for "Beyond the Yellow Ribbon," a program that works with employers and provides counseling and other services. The unemployment for returning veterans is significantly higher than that for other Minnesotans for a bevy of complex reasons. Some were out of work before they left, and they may have volunteered for duty in part because of what was already a bleak job picture. Unlike the 19- and 20-year olds who served in Vietnam, the National Guard members and Reservists fighting this war are typically in their 30s or older, have families, and may not be as able to move anywhere or take any job. The stress and strain of multiple tours of duty may result in mental health issues that must be dealt with before one can rejoin the workforce. Some veterans, who have shouldered great responsibilities and demonstrated strong leadership skills under fire, may be reluctant to return to jobs that no longer seem challenging or fulfilling.

A new enemy: Discrimination

But some say there is another reason so many veterans will be trading the stress of the battlefield for the anxiety of unemployment: illegal discrimination. Some companies have taken a leadership role in supporting servicemembers through programs like "Beyond the Yellow Ribbon," and have gone beyond what is required by law to accommodate and assist servicemembers. But other employers have failed to fulfill their legal obligations, veterans' advocates say.

Some may not understand how state and federal law protects servicemembers and provides certain employment and re-employment rights. But, especially in tough times with company budgets strained and every hiring decision more critical, some Minnesota employers may ask questions and engage in practices they know to be illegal, because they know that discrimination may be difficult to prove. When interviewing a member of the Guard or Reserves, the question on the minds of too many employers is, "Are you going to be around, or what, man?" says Hector Matascastillo, a specialist for the Minnesota Department of Employment and Economic Development (DEED), who heads a team that provides state job-related services in the wake of layoffs. "It's not a legal question, but do you tell an employer in an interview, you're asking me an illegal question? Or do you find a way around that question?"

What's legal and what isn't

Under federal law, the Uniformed Services Employment and Reemployment Rights Act (USERRA), it is illegal for an employer to discriminate against anyone who is a past or present member of the uniformed services (which includes the Guard and Reserves), has applied for membership in the uniformed services, or is obligated to serve in the uniformed services. An employer may not refuse to hire, refuse to rehire, terminate, or deny a promotion or other benefit because of these reasons. An employee who has served in the uniformed services must be given his job at the conclusion of his or her service, or — if the employee has been gone for more than six months — he or she may be given a comparable job, but it must be equivalent in seniority, status and pay. "The key element to USERRA is that the service member should be treated as though they never left," says Kevin Nagel, Minnesota Director for Veterans' Employment and Training (VETS), U.S. Department of Labor.

The law doesn't mean that an employee who is serving in the military can't be laid off or terminated due to company downsizing or for some other reason, but only if he or she would have been laid off had they not had a military obligation. "In a lot of the cases we're getting, an employer may not understand this," says Nagel. He has to lay off some employees, "and Johnson is out on military leave, so he's an easy one to pick. He was a convenient one, but not necessarily the one that would have been laid off."

But some employers apparently do know the law, and know that violations can be difficult to prove. It is rare that an employer will say, "I'd like to hire you, but you're in the Guard or Reserve, thanks for the interview," explains Jim Sullivan, Minnesota Executive Director of Employer Support of the Guard and Reserve (ESGR), an organization that mediates disputes between veterans and employers. "We do see some of that, but most of them are savvy enough not to get caught in that remark, and it's very difficult to prove." Other violations of USERRA may involve an existing employee who may not get a pay raise or a promotion, because they are gone one weekend a month fulfilling their military obligation. Then there's harassment based on military service, also illegal. "That comes in a lot of different forms too," Sullivan says. "It can be just snide remarks; it can be sharing the venomous remarks with other employees because they've got to pick up the slack."

Why employers discriminate

It is unusual for a large corporation to run afoul of USERRA. "We don't see it too often," says Sullivan. "Most of those companies at their corporate level have attorneys who are quite knowledgeable about USERRA." But even larger companies can sometimes violate the law, despite having policies to the contrary, according to Nagel. "Their legal departments understand what USERRA is. But when you get down to the local supervisor, if they don't have a full understanding they can give bad information... that's where a case can start, even though the corporation overall is aware of the law."

Because of the possibility of illegal discrimination, Matascastillo would coach veterans on the appropriate time to discuss one's military obligation, when he worked as a veteran employment representative. "You want to put it up there so that you just get it out of the way. If they're going to be hostile to you, you are going to feel it in the interview, and you don't want to work there anyway." But there may be situations when less disclosure is a better option. "If I'm in the National Guard, and my unit has already been notified that in two years we might have another mission — when do you say that to an employer, to protect yourself and to protect your job? If you say it in an interview, you'll never know why you didn't get hired, but I could pretty much tell you why you didn't get hired."

Concern about Post-Traumatic Stress Disorder (PTSD) may also cause some employers to be reluctant to hire those who have recently returned from duty in Iraq or Afghanistan. "I have lots of anecdotal evidence of that," says attorney John Baker. Baker retired from the Marine Corps as a Gunnery Sergeant after serving 22 years, and his law practice focuses in part on military and veterans issues. "Of course, not a lot of employers are going to come out and say, we are going to discriminate against veterans because of these issues (PTSD). But there is tons of evidence that we are seeing that," he asserts.

The evidence that some employers are discriminating against veterans because of concerns of PTSD isn't clearcut in Sullivan's view, but he "tends to believe" it happens. "We have a lot of companies that are very proud of hiring Guard and Reserve members and veterans. But there are some that are really on the fringe, and the companies are just staying afloat. They've got to have everybody there every day, and they don't want to deal with any extra burdens," he explains. That kind of discrimination is "very difficult to prove unless someone maybe has a tape recorder in their pocket, or a witness," he adds.

State laws that protect veterans

In addition to federal laws, the State of Minnesota provides protection for veterans through a number of different statutes. Under Minnesota Statute § 192.34, it is illegal for an employer to fire someone because he or she is a member of the military or naval forces of the United States, of Minnesota or any other state. It's also illegal under that statute to threaten someone's job to dissuade them from enlisting in the military. Under another Minnesota Statute, § 181.535, it's illegal for an employer to even ask an employee about military status, if the intent of the question is to discriminate.

Minnesota law also grants veteran's preference for civil service jobs with Minnesota counties, cities, towns, school district and similar entities, and provides veterans covered under veteran's preference with additional protection from termination except for incompetency or misconduct, and requires an employer considering firing an employee for those reasons to conduct a hearing. Ironically, it is veterans preference laws and their termination provisions that may make some government employers reluctant to hire veterans, according to Baker. "What we hear from a lot of government agencies, city and county folks throughout Minnesota, is that they don't want to hire a veteran, because it will be a pain in the ass to have to fire them, because you have to go through the veterans preference law," says Baker.

What other states do

Like Minnesota, at least 25 other states have laws that provide some protection against discrimination based on military status. Some states declare, as does USERRA and the state of Minnesota (in statute 192.34), that firing a person because of membership in the military is illegal. But in the past several years, as continued U.S. involvement in Iraq and Afghanistan has demanded even more sacrifice from National Guard members and their families, some states have gone a step further by adding military status as a protected class — like race, sex, age and other protected classes — to their state human rights or anti-discrimination laws (see 2010 winter issue as PDF, page 36). That means that the state agency that investigates charges of race or sex discrimination can also investigate military status discrimination, and hold employers that break the law accountable.

  • In Ohio, military status was added as a protected class in 2007 and went into effect the next year, prohibiting discrimination in employment, housing and lending against those serving in the Guard or otherwise in the "uniformed services."
  • Wisconsin also added military status as a protected class in 2007, including it along with age, sex, race other other characteristics already protected under the Wisconsin Fair Employment Law.
  • In 2007 Washington added military status to its State Law Against Discrimination, protecting it in employment, public accommodations, real estate, credit and other areas.
  • Massachusetts added military status as protected class in employment in 2004.
  • In New York, the legislature added military status as a protected class in employment, housing, public accommodations, credit and other areas back in 2003, as part of a comprehensive package called the New York "Patriot Plan."
  • The Illinois Human Rights Act had long included military status as a protected class, but its definition of military status was broadened in 2004 and again in 2006, and that Act now protects veterans of the armed services, Reserve units and National Guard, in addition to those on active duty.

The addition of military status to state human rights laws does not appear to have resulted in a flood of cases, according to representatives from four states interviewed for this issue. In Wisconsin, the agency that enforces its human rights law had 12 complaints of discrimination based on military status in 2008, the first year the military status provision was in effect — a miniscule percentage of the 3,514 complaints the agency received that year. But Bob Anderson, who enforces Wisconsin's laws, believe it has had an impact, despite few cases.

"I think that before military status was in law, there were some employers that were using it as a reason to discriminate," says Bob Anderson, Director of the Labor Standards Bureau, Equal Rights Division, for Wisconsin Department of Workforce Development. He believes that Wisconsin employers have gotten the message and chosen to comply, an ideal situation in his view. "The perfect law is one that you pass to try to accomplish something, and it accomplishes it, without you having to do any enforcement,"he explains.

Although the military status provision was not actively pushed by Wisconsin human rights enforcement officials, the proposal quickly became politically popular. "Everybody wanted to jump on the bandwagon," recalls Anderson. Some legislators may have had reservations, but the measure passed overwhelmingly. "When it comes time for an up and down vote, do you want to run for reelection this fall with it on your record that you voted against protecting someone who is serving in Afghanistan from losing his job when he gets back, because of his participation in the National Guard or Reserve?"

The Minnesota Human Rights Act does not include military status as a protected class, and despite a range of proposals to help veterans and their families, the idea does not appear to be one that veterans' advocates are actively pursuing. "I've always worked under the auspices that veterans aren't under the same protected class envelope as minorities, women, and some of the other protected classes," says Baker, who chairs the Military Action Group, a coalition that has developed a series of proposals for the Legislature to consider this session. "I always look at it as a different slice of the pie."

The coalition is proposing to strengthen existing laws on veterans preference, and expand eligibility for a program that provides grants to servicemembers who own small businesses. It also wants to create "veterans courts" that would offer treatment instead of incarceration for some veterans, and to expand a law passed last session to make it easier for a veteran in legal custody to obtain a psychological evaluation. Still other proposals would reduce or eliminate state income taxes on veterans' pensions, and provide funding for continued outreach to homeless veterans.

"The majority of our returning veterans, who have been through some of the finest training leadership programs in the world, are coming back home, ready to be contributing members and leaders in our society," says Baker. "They just need a little help — a little veterans preference in employment — let's get them into our positions of leadership."

For some returning service members, the hunger for a challenge and job that seems to matter may be greater than the immediate need for a paycheck. "Maybe they were flipping burgers before. Now they've come back after a year of being gone and they've been in leadership roles and had accountability for millions of dollars worth of equipment, and guiding people under duress," says Sullivan. "Guys are coming back and saying, I don't want to go back to my old job, I just got done doing something purposeful and meaningful in the world — I can't do that job anymore," adds Matascastillo.

If a returning service-member can't find a meaningful job — or perhaps any job — in Minnesota, he or she may be inclined to consider another option: returning to Iraq or Afghanistan. That option is increasingly attractive and may make economic sense for some, says Matascastillo. The soldier who has already severed two or three tours may decide that "there's no jobs here, so the only stability I can create for myself and my family is to keep going back," he says. He may fear that if he doesn't go back to Iraq, he may lose his house to foreclosure. Besides, he knows the job he signed up for — keeping America safe and winning the war on terror — isn't done. "So the pull is back towards, I'll go again," Matascastillo continues. "Some of these kids, just in Iraq alone, have gone back four times."

There are days when Matascastillo, who served in Iraq with the U.S. Army 75th Ranger Regiment, won the Bronze star, then struggled with PTSD, feels as though he needs to go back to Iraq, despite the important work he is doing here. "I'll tell my wife, Igetting the itch, I feel like I need to go again. But it's not realistic anymore. Now imagine being twenty-something, and it is realistic, and it makes economic sense."

It's important for everyone to realize what Minnesota's National Guard members, reservists and their families may have experienced over perhaps several tours of duty overseas, and that it may take a while for returning veterans to be "untrained" from the military roles. The transition back to civilian life will usually take a while, more for some veterans than others. "It's about going from an environment that is very, very stressful, and you learn to accommodate that stress — because if you didn't, it would kill you," says Finley. "They were in an environment where if there's a bad decision, a slow decision, or a lack of decision, someone can get hurt or worse. And they come back to a society where things are just not that critical. It takes a while, he says, to decompress from that fever pitch."

They may be your coworkers, who might need a little help getting back in the daily routine or understanding new office procedures after a year away in Iraq — but may not ask for it, because the culture they assimilated in the military taught them they must do more than their share. Or they might be your neighbors down the street, and you may not even know it, or realize that they were away.

"With some of these guys who are deployed, their wives are nervous to tell anyone that their husband is gone, because they don't want to feel like they're alone," says SFC Melanie Nelson. "So we are trying so hard to create these Yellow Ribbon communities, so the families back home feel comfortable in their community and they're taken care of... because they are your neighbors... they're right next door."

There was a time when people knew their neighbors, and knew who was serving overseas. When they came back, they were welcomed by their communities and given opportunities to go school, buy houses and start businesses. America was growing, the economy was strong, and almost everyone had jobs.

One day back in about 1977, when he had just started working in what was then a new program to help veterans find employment, Jim Finley found some old files in his office in Downtown Minneapolis. He decided to see what these archives contained, and discovered they were from the years just after World War II. "These employment officers and veterans employment reps were literally placing hundreds of veterans a month in jobs, because not only were there some programs for them and training programs, but the national fever was, hire a veteran. That's what I think we need to get back to," he says. "I think that a lot of these folks deserve better."

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