Veterans Day (Fictional) Mailbag: A Veteran, A Disabled Individual, And An Olympic Athlete Walk Into A…

By Michael G. McClory - Bullard Law

November 10, 2017

Today is Veterans Day and we thank the men and women who are or have served in armed forces of the United States by responding to a (fictional) mailbag question that, fittingly, has something to do with veterans.  It is a bit of an unusual letter from an under-informed private sector HR manager named Buzz.  His company is trying to fill an open accountant position and has narrowed the candidate list down to three.  Buzz wants to know how to apply the veterans’ preference and the preferences for other protected classes.  However, there is not a veterans’ preference in private employment.  The Bullard Edge tries to organize the issues for Buzz, including discussing the difference between non-discrimination and a preference and by outlining the veterans’ preference in Oregon public sector employment.  Here is Buzz’s letter followed by our response.  Enjoy.
 
Buzz’s Question:
This sounds made up, but it literally happened at Mid-Town Gizmos.  Here is what occurred.  An Air Force veteran, a disabled individual, and an Olympic athlete walked into our HR office.  Sounds like the set-up for a bad joke, right?
 
Actually, they did not walk into the HR office.  This is 2017.  Mid-Town Gizmos posted an accountant position (non-CPA) online; it is a mid-level position requiring 4 to 5 years of relevant experience.  We received a tremendous number of applications, including those submitted by the Air Force veteran (Matt), the disabled individual (Lila), and the Olympic athlete (Jane).  On paper and through the interview process these three distinguished themselves as the top candidates and the company is going to have to select one of them.  Unfortunately, there is very little objective difference between the three and I hate to think of the selection boiling down to subjective differences.  Look at these profiles.

-Matt is an honorably discharged Air Force veteran with 10 years of solid accounting experience.

- Lila, who is hearing impaired, has 9 years of accounting experience, including 2 years with a related company.

- Jane, who was an alternate Olympic sprinter, has 4 years of accounting experience, but she is also a CPA and graduated from the top-ranked accounting program at Mid-Town University.

I had a chance to take the HR job with East City and I am half wishing I had done that.  These are three very qualified candidates and selecting one is going to be a tough call.  The only ray of light may be a suggestion from Bill, the CFO, that I give a preference based on protected status.  Bill said that veterans get a 10 point preference over other candidates and suggested that I factor in preferences for each of the others based on their various protected statuses.  I am not sure of the math, but he said Matt should get a 7.5 point preference (the ten point veteran preference minus 2.5 points for being white, not disabled and not age protected).  Bill said that by his calculation Lila, who is a disabled female minority over age 40, should get a 6 point preference.  Bill said that Jane, who is an Olympian and has a same-sex spouse, should get a 4 point preference.  
 
I have been with Mid-Town Gizmo for 7 years, although most of my time here has been in sales.  I am new-ish to HR and am not familiar with all of these preferences that Bill wants me to apply.  My hope is that The Bullard Edge will be able to help me understand who gets a preference and how that preference works.  Thanks.

The Bullard Edge's Response:
Buzz, I hope you understand that The Bullard Edge generally does not give legal advice (call your employment lawyer for that).  However, we will make a limited exception here.  Specifically, we advise you not to listen to Bill.  You do not know about these various preferences because they do not exist.  There is an Oregon public sector veterans’ preference, but that would not apply to private sector Mid-Town Gizmos.  To help you regain your focus ahead of selecting an accountant, we will cover four key points with you.
 
First, today is Veterans Day 2017.  The Bullard Edge is grateful for the service that members of the United States military have given to this country.  Whether they are the men and women of today’s military, or whether they have served in the past, we salute them and thank them for their service.  Read more about the history of Veterans Day and remember to thank the veterans you know for their service.
 
Second, non-discrimination does not mean giving a preference.  We do not know where Bill got his (mis)information.  As you described the profiles for Matt, Lila and Jane we noted a number of protected classes being implicated.  Matt, for example, is a veteran and is protected from discrimination based on his veteran status by USERRA.  Lila also is protected against discrimination based on disability, gender, race, and age.  Likewise, Jane is protected against discrimination based on her Olympian status (one of Oregon’s unique protections), her gender and possibly on her sexual orientation (at least in Oregon).
 
As we have said before, these civil rights laws (Title VII, ADA, ADEA, FMLA and the rest) have one thing in common – they are intended to level the playing field.  In other words, these laws are supposed to prevent employment decisions from being made because of a protected status (such as gender, disability or age), except in those rare circumstances where an otherwise protected status might be a BFOQ (see here and here, for example).  The goal is equal opportunity (like the name of the federal enforcement agency).
 
The Bullard Edge can get behind the idea of equal opportunity.  It is fair and makes sense.  It is not that a protected characteristic gives an advantage; rather, it is simply to prevent the protected characteristic from being a disadvantage in the job market.
 
Third, there is a veterans’ preference in Oregon public sector employment.  Oregon’s Veterans’ Preference law (see ORS 408.225 to 408.237) requires that public sector employers filling “civil service” positions provide a preference to eligible veterans at each competitive stage of a selection process (for hire or promotion).  “Civil service” positions are those for which a hiring or promotion decision is or must be made based on the results of a merit-based, competitive process that includes, but is not limited to, consideration of the relative abilities, knowledge, experience and other skills of applicants.  In scored stages of the selection process the preference is 5 points for veterans or 10 points for disabled veterans.  A preference also must be given at stages that are not numerically scored.  For those stages, the employer must devise another method to give a preference.  As amended in 2007, the law provides that an employer “shall devise and apply methods by which the employer gives special consideration in the employer’s hiring decision to veteran and disabled veterans.”
 
We note your statement that you almost took the HR job with East City.  In the event that you eventually take an HR job in the public sector you will want to contact your counsel to get more information on the veterans’ preference.
 
Fourth, the employment selection process should be based on the merits.  You should be happy to have the “dilemma” of three very solid candidates for the open accountant position.  Whether you ultimately select Matt, Lila or Jane you will want to make that decision based on the qualifications of the candidates.  You will want to be able to articulate the basis for your legitimate (the legitimate non-discriminatory rationale) at the time that you make the selection.
 
We absolutely hope this helps you to get organized as you prepare to make this difficult decision.  Let us know how it goes.
 
Best regards,
The Bullard Edge