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Is Military Membership A Protected Characteristic?

South Carolina and U.S. federal law both prohibit discrimination in employment if it is done on the basis of certain protected characteristics. Between Title VII of the Civil Rights Act of 1964, the South Carolina Human Affairs Law (HAL), and many other pieces of legislation, employers are forbidden to discriminate on bases of race, sex/gender, national origin, disability, age, and genetic information, among others. Membership in the U.S. military is not an immutable characteristic, but it is protected in some instances where you may face discriminatory behavior.

USERRA Protects Military Personnel

Different protected classes are established by different laws – for example, disability was classified as a protected characteristic by the Americans with Disabilities Act (ADA), and by the HAL at state level. The law that establishes military membership or service as protected is known as the Uniformed Services Employment and Reemployment Rights Act (USERRA), and it protects veterans from being discriminated against while in civilian employment, by their employer or anyone else.

While USERRA does specifically protect military service members from discrimination on the job, the primary motivation behind the law’s passage is to safeguard their civilian employment rights (denying them, of course, can be a form of discrimination). If you are currently or have ever been a service member in the past, have an obligation to serve, or have applied to serve, your employer may not deny you any kind of employment benefit because of this.

Keeping Your Civilian Job

The other, arguably more crucial part of USERRA has to do with the rights of military service members to retain their civilian jobs, even while fulfilling their obligation to their branch of the armed forces. If an employee meets four criteria, they may not only serve in the military while holding a civilian job, but they are also entitled to reemployment upon the conclusion of their service obligation (or employment in a job as close to their old one as possible).

The four criteria that the employee must meet are (1) providing sufficient notice to their employer about any upcoming service requirement; (2) having less than 5 years’ cumulative military service while they have been with their civilian employer; (3) returning to work or applying for reemployment “in a timely manner” once your service is complete; and (4) not being separated from military service by “other than honorable conditions” – that is, with a dishonorable or general discharge. If all of these are met, the employee has the right to reemployment, and to seek compensation if it is not forthcoming.

Contact a South Carolina Employment Law Attorney

Military service members have obligations that they take very seriously, and to serve is something to be supported, not undermined by jeopardizing a service member’s civilian livelihood. If you believe this is happening to you, a South Carolina employment law attorney may be able to help. Attorney A. Christopher Potts and the firm of Hitchcock & Potts have been handling these types of cases for a long time, and are ready to put our knowledge to work for you. Contact our offices today to schedule a consultation.

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