Latest Bulletins

Winter 2004/2005
Employment Law Bulletin:

Protection From Employment Discrimination Based On Military Service

With continued tensions and terrorist attacks in Iraq, the Middle East and other parts of the world, more National Guard members are being called up for military service and leaving their families and jobs behind. Against this backdrop, the Massachusetts Legislature recently amended the Fair Employment Practices Law ("FEPL") to give protection under that statute from employment discrimination based on military service. In addition to the prohibitions of discrimination on the basis of the "protected characteristics" of race, color, religion, national origin, ancestry, sex, age, disability, sexual orientation and genetic information, military service joins the list of protected characteristics under FEPL. The amendment goes into effect on December 22, 2004.

Who is considered protected?

The new provision applies to a person who is a member of a uniformed military service of the United States (including the National Guard), a person who applies to perform such uniformed military service, or a person who has an obligation to perform such uniformed military service.

What is prohibited?

It is unlawful for an employer or an employment agency to refuse to hire, reemploy, retain in employment or promote a person, or to deny any benefit of employment to a person, on the basis of that person’s military service membership, application or obligation.

Who is an employer?

As with other "protected characteristics" and prohibitions covered under FEPL, the prohibition of military service discrimination applies to employers (private or public) with six or more employees.

What are the remedies for violations?

A person who believes that he or she has been discriminated against because of his or her military service membership, application or obligation can file a charge of discrimination with the Massachusetts Commission Against Discrimination ("MCAD"). He or she has 300 days from the adverse job action to file a charge. If the MCAD finds a violation of FEPL, the individual may be entitled to be restored to his or her job and to recover back and/or front pay, emotional distress damages and reasonable attorney’s fees.

Existing Federal and State Statutes

Prior to the amendment of FEPL, Massachusetts law only provided restoration rights to an employee who left a position for a period not exceeding seventeen days in any one calendar year in order to receive military training in the United States armed forces.

Federal law has for years provided broader protection for members of the military than was previously available under state law. After the first Gulf War, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), which increased protection under federal law against discrimination and retaliation on the basis of military service and strengthened reinstatement rights of employees who serve in the military. Certain requirements exist for employees to be eligible for reinstatement, and exceptions exist to an employer’s obligation of reemployment. An employer may also be obligated to maintain certain benefits and seniority that the person would have received but for being on military leave.

Conclusion

Given the change in Massachusetts law, employers must be particularly careful when making any employment decisions about taking into consideration a person’s military service membership, application or obligation. If you would like to discuss how the amendment to FEPL could affect your business, please contact us.

Mary J. Kennedy practices in and is coordinator of the firm’s Employment Law Practice Group. She may be reached at mkennedy@bulkley.com or (413) 272-6242. Other articles regarding employment issues and other topics are available at www.bulkley.com.