Tuesday, October 28, 2014

Welsh pursues case on protections for seaman whistleblowers

My client, Maurice “Maury” Welsh, is a life-long seaman. He comes from a family of seamen, and now his son is in maritime studies. His case is now poised to change the scope of protection for other seaman working on U.S.-flagged carriers. (Welsh has given permission for me to post this information about his case, something lawyers cannot do without their client’s permission.) Today, an Administrative Law Judge of the U.S. Department of Labor overruled the shipping company’s motion to dismiss to allow Welsh to collect more information about the company.

In November, 2013, one of the historic U.S. shipping companies hired Welsh to work on a container ship as 2nd Assistant Engineer. The ship flies a U.S. flag and participates in the U.S. government’s Maritime Security Program (MSP). The company advertises the ship as part of its “U.S. Flag Services” and a critical link for many U.S. Government efforts worldwide. 

Soon after setting sail, Welsh started raising concerns about the lock-out tag-out procedures. The 1st Engineer told him that each tag required a separate piece of paper and he did not want to keep track of all that paperwork. 

On December 23, 2013, Welsh followed the manufacturer’s instructions for maintenance of the #2 Diesel Generator and turned on the generator and warmed it up to reach the required exhaust temperature. The 1st Engineer countermanded Welsh and shut it off. The company then terminated Welsh on December 25, 2013, citing the disagreement over the engine maintenance as a reason.
When Welsh came to me, I recognized that he had been fired for raising safety issues. I file a complaint with the Department of Labor under the Seamans Protection Act (SPA). OSHA closed the complaint without conducting any interview of Welsh, and without receiving any response from the company. 

So, I requested a hearing from the Department of Labor’s Office of Administrative Law Judges (OALJ). The company moved to dismiss the case citing an OSHA regulation that says a “seaman” is someone working for a “U.S. citizen.” The company says that since it was bought by an overseas company a few years ago, it is not covered by the SPA. I disagreed. Now the ALJ is allowing discovery to commence. I am hopeful that my research on this issue will help the Department of Labor to recognize that the SPA protects American seaman working on U.S. flag vessels, no matter who owns them.

The Seaman’s Protection Act (“SPA”), 46 U.S.C. § 2114(a), provides in part as follows:

(a)(1) A person may not discharge or in any manner discriminate against a seaman because-
(B) the seaman has refused to perform duties ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public[.]

While the Department of Labor has added a regulation defining a “citizen of the United States,” and a “seaman” as an employee of such a citizen, these definitions have no basis in text of the statute itself. The statute gives the Department no authority to promulgate substantive regulations, and the Department’s own statement indicates no intent to make any substantive change. Moreover, the caselaw on extraterritorial application of whistleblower protection laws has advanced considerably in recent years. 

Welsh objected to the company’s motion to dismiss on the following grounds:

  1. The plain text of the SPA applies to any “person.”
  2. The remedial purpose of the SPA urges in favor of finding coverage.
  3. The regulation is not substantive and cannot alter the statutory scope of coverage.
  4. The ship flies a U.S. flag and is thereby subject to U.S. law.
  5. The adverse actions in this case occurred within the jurisdiction of the United States, and U.S. law properly applies. Finding coverage in this case is consistent with the developing law on extraterritoriality.
  6. The company in this case is a U.S. corporation, and faces liability here for its actions within the U.S., even if it is owned by a corporation of another country.
  7. Welsh had a reasonable belief that he was working with the scope of U.S. law which includes the SPA.
  8. Discovery is necessary and appropriate before making a finding of lack of jurisdiction.

You can follow this link to read the full legal argument I made for Maury Welsh. It explores the doctrine of jurisdiction under admiralty law and explains how the United States sets conditions for "cabotage rights" (the right to sail from one U.S. port directly to another, without visiting a foreign port).

Hopefully, other seaman who raise safety issues and suffer for it will be able to use the same arguments to preserve their rights under the SPA. I also hope the Department of Labor will soon issue a final regulation that conforms to the language used by Congress.

By Richard Renner

Tuesday, October 14, 2014

Employee fired for drinking store's OJ to avoid diabetic coma

Linda Atkins worked at the Dollar General Store in Maryville, Tennessee as a Lead Sales Associate. She had been working there for two years, and was a very satisfactory employee, having been promoted from Sales Associate a year earlier. 

As Lead Sales Associate, Atkins’ duties included sales associate functions and assisting in opening and closing the store at the direction of the store manager.  She would also work as the store manager on duty and as the relief cashier when the shift cashier took a lunch break.  

Atkins has Type 2 Diabetes, and has to give herself an injection of insulin every day. She told the Store Manager about her diabetes, and asked for permission to keep a bottle of juice near the cash register so that she could drink it if she felt the onset of a hypoglycemic attack while on duty. However, the Store Manager turned down her request, saying that it was against store policy to have juice at or near the register. 

One day in January, 2012, Atkins was working as the relief cashier while the shift cashier took her one hour lunch break.  While ringing up customers, Atkins began to experience the symptoms of a hypoglycemic attack (which typically include dizziness, sweating, and rapid heart beat), and needed to stabilize her blood sugar immediately.  As the sole employee in the store, she did not want to leave the cash register unattended, so she grabbed a bottle of orange juice from the store’s cooler and drank it. 

Although Atkins had her own orange juice in her personal cooler in the rear of the store, she did not want to leave the cash register unattended, so she took emergency action by removing the juice from the store’s cooler and drinking it, to prevent a threat on her life.  As soon as the medical episode was over, she paid for the orange juice.  If she had not drunk the juice, she could have experienced serious health consequences, such as a diabetic coma.  

Atkins told the District Manager what she had done, and that she believed she would have passed out if she did not drink the juice to stabilize her blood glucose level. However, she was fired for violating the store’s “grazing” policy, which prohibits employees from consuming merchandise before payment.

Atkins filed a charge of discrimination with the EEOC, and the EEOC attempted to reach a voluntary settlement with Dollar General through its conciliation process. When that process did not lead to settlement, in September 2014, the EEOC sued Dollar General on Atkins’ behalf, alleging that Dollar General violated the Americans with Disabilities Act by failing to accommodate Atkins’ disability.  Specifically, the company violated the ADA when it denied Atkins the “reasonable accommodation” of keeping her own bottle of juice at the register, and when it fired her for violating the store’s grazing policy.   The suit is EEOC v. Dollar General, U.S. District Court for the Eastern District of Tennessee, Knoxville Division, No. 3:14-cv-00441.

Under the ADA, an employee with a disability has the right to ask the employer to adjust or modify the job - called reasonable accommodations.  The employer is required to discuss the issue with the employee, engaging in an interactive process, to arrive at a workable solution.  The employer is required to grant the accommodation unless doing so would be an undue hardship (that is, a significant difficulty or expense).  See the EEOC’s "Questions & Answers about Diabetes in the Workplace and the Americans with Disabilities Act (ADA)." 

The legal question is whether a company is considered to be engaging in discrimination when it fires an employee for violating a company policy that it applies equally to all employees.  But what if the employee violated the policy due to her disability? According to published EEOC guidance, a company may always enforce certain standards, such as prohibitions on violence, stealing, or destruction of property, even if the employee claims she violated the policy due to her disability.  But the law requires an employer to be flexible when it comes to other policies, if making an exception would not be an “undue hardship.” See the EEOC's "Applying Performance And Conduct Standards To Employees With Disabilities.” 

A similar case against Walgreens is pending in California, Equal Employment Opportunity Commission v. Walgreen Co., --- F.Supp.2d ----, 2014 WL 1410311 (N.D.Cal.), 29 A.D. Cases 1031. It, too, involves a diabetic employee who was fired for violating the store’s anti-grazing policy. The employee, Josephina Hernandez, had worked for Walgreens for 18 years.  Like Linda Atkins, Hernandez told her employer that she had Type 2 diabetes. Walgreens allowed Hernandez to keep candy with her in case of low blood sugar, keep her insulin in the break room refrigerator, and take additional breaks to test her blood sugar or eat because of her diabetes. 

One day, while Hernandez was returning items in a shopping cart to shelves, she noticed she was shaking and sweating from low blood sugar. She did not have her personal candy with her and was in the magazine isle, so she opened a small bag of potato chips that was in her cart and ate some of them.  She went to pay for the chips at the cosmetic counter (where she had been instructed to pay for store items) but no one was there. Hernandez put the potato chips under the counter at her cash register and returned to restocking items. The Assistant Store Manager found the chips and asked whose they were. Hernandez said the chips were hers, and wrote up a statement saying that she ate the chips for her low blood sugar, and that she did not take the time to pay for them.  She was fired for taking the chips in violation of Walgreens's anti-grazing policy. 

The EEOC may have a more difficult time with this case than with the Dollar General Case. The major differences are that Atkins had specifically asked for permission to keep juice with her at the register and had been denied, that she was the only employee in the store at the time, that customers were waiting at the cash register, and that she paid for the juice immediately after consuming it.  

In contrast, Hernandez was one of many employees and was involved in restocking shelves when her hypoglycemic attack occurred.  She arguably could have sought out someone to pay rather than putting the chips under the counter and going back to stocking shelves. Given retailers’ ongoing concerns with employee theft, Walgreens may be able to demonstrate that it would be an undue hardship to permit even a disabled employee having a hypoglycemic attack to consume its merchandise without paying for it.  

On the other hand, a sympathetic jury might decide that a loyal, long term employee with a disability is surely entitled to some accommodation, such as not being terminated for a first offense of violating the anti-grazing policy.  

      - This blog entry was prepared by Elizabeth L. Newman.  You may reach her at enewman@kcnlaw.com.

Thursday, October 9, 2014

Out of the Dark Ages and Into the Shadows

This year, the Equal Employment Opportunity Commission (EEOC) is celebrating the 50th  anniversary of the passage of the Civil Rights Act of 1964.  Signed by President Lyndon B. Johnson, the legislation arose out of years of nonviolent protests culminating in the 1963 March on Washington.  One year later, the Civil Rights Act was enacted, including Title VII, which prohibits discrimination on the basis of race, color, religion, national origin, and sex in the workplace.

On the night President Johnson signed the far-reaching legislation, he noted that:

[O]ur generation of Americans has been called on to continue the unending search for justice within our own borders.  We believe that all men are created equal.  Yet many are denied equal treatment.  We believe that all men have certain unalienable rights.  Yet many Americans do not enjoy those rights.  We believe that all men are entitled to the blessings of liberty.  Yet millions are being deprived of those blessings–not because of their own failures, but because of the color of their skin....But it cannot continue.  Our Constitution, the foundation of our Republic, forbids it.  The principles of our freedom forbid it.  Morality forbids it.  And the law I will sign tonight forbids it.  http://www.eeoc.gov/eeoc/history/cra50th/index.cfm

On July 2, 2014, Jacqueline A.  Berrien, Chair of the EEOC, commemorated the Act’s 50th anniversary, writing that, “the EEOC has worked successfully to advance its mission to stop and remedy unlawful employment discrimination so that the nation can realize the vision of Title VII and of the EEOC: justice and equality in the workplace.  Never before has our nation enjoyed greater inclusivity in the workplace and better reflected the diversity of the American people.”  Id.  (emphasis in original).  However, Ms. Berrien slightly tempered her enthusiasm for the success of the distribution of equality in the workplace, noting, “the goals of Title VII and the Civil Rights Act of 1964 in its entirety are not yet achieved, and the 'unalienable right' and 'blessings of liberty' promised in the nation's founding documents...are still elusive for too many people.  The EEOC receives nearly 100,000 charges of discrimination each year, with retaliation and racial discrimination remaining our greatest challenges.” Id.

What is most alarming is that, despite having familiar prohibitions against workplace discrimination in place for 50 years, some employers still engage in vile, almost incomprehensible discrimination.

Race Discrimination:

In September 2014, the EEOC required McCormick & Schmick's restaurant chain in Baltimore to pay $1.8 million and provide significant injunctive relief.  In a lawsuit filed by the EEOC in 2008, the EEOC charged that McCormick had engaged in a pattern and practice of race discrimination by refusing to hire African-American job applicants for front-of-the-house positions from 1998 to 2010, and that those few African-Americans who had been previously hired for front-of-the-house positions were denied equal work assignments because of their race.  The EEOC also charged that McCormick & Schmick's advertising for job opportunities on the company's website visually depicted a preference for non-African-American workers.  The EEOC required McCormick & Schmick's to implement numerical goals for the hiring of African-American job applicants for front-of-the-house positions at its two Baltimore locations, and to review its job advertisements to ensure they do not express intended or unintended preferences because of race.  http://www.eeoc.gov/eeoc/newsroom/release/9-12-14a.cfm

On October 1, 2014, the EEOC filed suit against Huddle House restaurant chain.  According to the EEOC's lawsuit, Huddle House in Pine Bluff, Arkansas, subjected an African-American woman who worked as a shift leader to racially offensive language.  Her management team regularly referred to her and other African-American employees as “ghetto,” “hood,” “hood rat,” “Huddle Hos,” and used the “N-word” when visiting the restaurant.  The EEOC filed suit after first attempting to reach a pre-litigation settlement with the restaurant chain through its conciliation process.  http://www.eeoc.gov/eeoc/newsroom/release/10-1-14a.cfm

In September 2013, River View Coal, a subsidiary of Alliance Resources Partners LP (the third-largest eastern United States coal producer), entered into a consent decree settling a race discrimination lawsuit for $245,000 and injunctive relief.  According to the EEOC's 2011 lawsuit, River View Coal had engaged in a pattern and practice of excluding African-American applicants from coal mining jobs at its Waverly, Kentucky, facility since 2008.  As part of the settlement, River View was prohibited from engaging in future discrimination against African-American employees or applicants, was required to train its hiring managers and employees involved in the hiring process, and was required to increase its racial diversity in the workforce.  http://www.eeoc.gov/eeoc/newsroom/release/9-26-13a.cfm

In December 2012, Hamilton Growers, Inc., agreed to pay $500,000 to a class of American seasonal workers–most of whom were African-Americans–who were subjected to race and national origin discrimination.  The EEOC’s 2011 lawsuit alleged that Hamilton Growers had unlawfully engaged in a pattern and practice of discrimination against the American workers by firing virtually all of them, yet retaining workers from Mexico during the 2009, 2010, and 2011 growing seasons.  According to the EEOC, Hamilton Growers had also fired at least 16 African-American workers in 2009 based on their race, as their termination was coupled with race-based comments made by a management official.  The lawsuit further alleged that Hamilton Growers required the American workers to pick fields which had already been picked by foreign workers, thereby reducing their pay.  The consent decree requires Hamilton Growers to exercise good faith in hiring and retaining qualified workers of American national origin and African-American workers for all farm work positions, including supervisory positions.  http://www.eeoc.gov/eeoc/newsroom/release/12-13-12.cfm

In April 2012, Bankers Asset Management entered into a Consent Order with the EEOC requiring Bankers Asset to pay $600,000 to settle the lawsuit filed by the EEOC in 2010.  In the lawsuit, the EEOC alleged that Bankers Asset had excluded African-American applicants for jobs at the company's Little Rock, Arkansas location, based on their race.  As part of the settlement, Bankers Asset was required to provide mandatory three-hour training on race discrimination and retaliation to all of its employees, have its president inform the employees that the company does not tolerate discrimination, and issue a memo to one of its hiring officials explaining that the company does not discriminate on the basis of race and prior protected activities.  http://www.eeoc.gov/eeoc/newsroom/release/4-19-12.cfm

In January 2012, Matrix, LLC, was required in a consent decree with the EEOC to pay $450,000 to settle the EEOC's race discrimination and retaliation lawsuit filed in 2011.  In the lawsuit, the EEOC alleged that Matrix officials told a Caucasian supervisor not to hire any more African-American cleaners to work at a client's site in Pennsylvania.  When she hired them anyway, based on their qualifications, Matrix terminated her.  The EEOC also alleged that Matrix management officials had told African-American cleaners to sit in the back of the cafeteria during break times, and later would not allow them to sit in the cafeteria at all.  Matrix later fired all the African-American cleaners and replaced them with an entirely non-African-American cleaning crew.  The consent decree prohibited Matrix from discriminating on the basis of race or retaliation, and required Matrix to train its supervisors and managers about the prohibitions against racial discrimination and retaliation.  http://www.eeoc.gov/eeoc/newsroom/release/1-6-12.cfm

Gender Discrimination:

In June 2013, the EEOC filed suit against Performance Food Group, alleging that since 2004, PFG had engaged in an ongoing pattern of refusing to hire women for operative positions at their Broadline distribution facilities.  PFG senior vice presidents and other high-ranking management officials repeatedly made comments that were tantamount to directing managers to favor males and to discriminate against females in hiring, the EEOC charged.  The United States District Court for Maryland denied PFG's partial motion to dismiss on March 11, 2014.  In the Order, the Judge cited to several examples of gender-based discrimination, as alleged by the EEOC: (i) A woman who was interested in being promoted to a Warehouse Supervisor was told that it would be “useless and non-productive for her to apply” because the job was not for her, and she could get “hurt as a girl.”  (ii) A warehouse manager told a woman warehouse applicant with seven years of experience that PFG “did not feel safe with women working in the warehouse, did not want women working in the warehouse, that the work was too strenuous, women didn't last, they quit, they had child care issues.”  (iii) A Warehouse Manager was told by Human Resources that females in the warehouse “were a distraction” and “couldn't do the job.” EEOC v.  Performance Food Group, Inc., No.  MJG-13-1712 (D.  Md.  March 11, 2014).

In 2009, Preferred Labor, LLC, was required by a consent decree with the EEOC to pay $250,000 in a lawsuit filed by the EEOC alleging that Preferred Labor had denied female applicants job referrals based on their sex and complied with sex-based discriminatory requests from their client.  A woman who applied at the company's Worcester, Massachusetts facility in 2005 was told that only waitressing, dishwashing, and maid service jobs were available for women.  EEOC v.  Preferred Labor, LLC, d/b/a Preferred People Staffing (D.  Mass.  July 6, 2009).

These recent cases demonstrate that discrimination has not been eradicated in the workplace, despite the fact that anti-discrimination laws have been in place now for 50 years. Some employers simply defy Title VII's prohibitions against discrimination in the workplace, defile employees with racial epithets, and subject them to lesser working conditions or assignments. Some employers still engage in overt segregation. That the EEOC must require these employers in consent decrees to refrain from discriminating, to inform their hiring officials that the company does not discriminate, or to exercise good faith in hiring and retaining employees, underscores the embarrassingly low standards of behavior that are expected of employers. Yet, some employers fail to meet even these minimal standards.

As Ms. Berrien recognized, “this generation is–as was the generation before it–still called upon to 'continue the unending search for justice.'” http://www.eeoc.gov/eeoc/history/cra50th/index.cfm While Title VII and other anti-discrimination laws have emerged to bring society out of the Dark Ages, there is still much work to be done, much more need for inclusion in the workplace, to bring us even into the shadows.

Written by:  Valerie Chastain

Thursday, October 2, 2014

The Veterans' Preference: It's Greek to Me

Aristotle's theories of justice have permeated the creation and application of modern employment laws in Western society.  His theories stem from the basic tenet of restoration: restoring injured parties to the status they occupied prior to the injury or the loss they sustained as a result of the harmful or wrongful actions of another.  Justice, for Aristotle, consists of restoring and maintaining a proper balance.

According to Aristotle, justice has two branches: distributive and corrective.  Distributive justice concerns the division of finite goods among members of society.  “The aim of distributive justice is to establish or provide a method of establishing a proportion according to which the members of society will share so that the most deserving will be entitled to the most, and the least deserving to the least.” Kathryn R.  Heidt, Corrective Justice From Aristotle to Second Order Liability: Who Should Pay When The Culpable Cannot?, 47 Wash. & Lee Rev.  347 (1990), http://scholarlycommons.law.wlu.edu/wlulr/vol47/iss2/4.  The distribution of those finite goods is based upon criteria the society deems relevant.  Modern Western society tends to emphasize merit and need as the basis for distribution. 

What happens to the balance when the distribution of finite goods– which in the employment context concerns the distribution of employment opportunities– is based upon fluctuating, subjective criteria for determining which candidates are the “most deserving”?  These criteria fluctuate according to political agendas which vary from administration to administration, the composition of the Nation's highest court, and generational-dependent values. For example, with the Supreme Court's finding that portions of the Defense of Marriage Act (DOMA) are unconstitutional in 2013, the Office of Personnel Management is now able to extend certain benefits to federal employees who have legally married a spouse of the same sex. So, the Veterans Preference Act, which grants a preference to the wives of disabled veterans, would now extend the preference to same-sex spouses of disabled veterans.

After the distribution has been made, corrective justice protects the established distribution, and operates when a disturbance disrupts the proportion established by distributive justice.  Heidt, cited above.  The need for corrective justice arises when one party has injured another–that is, when one has inflicted harm, and another has been injured.  “The injury by one gives rise to the right of rectification or correction.” Id.

In addition to distributive and corrective justice, however, Americans have historically believed in a “merit system,” in which opportunities are awarded to those who have earned them, either through acquired skills, credentials, and/or qualifications.  What happens to Aristotle’s balance when society decides to apply corrective justice  in the form of employment opportunities, resulting in fewer opportunities for persons who have committed no harm or wrongdoing to another? 

This issue, which essentially is one of “affirmative action,” currently arises  in the context of the veterans' preference. According to the Office of Personnel Management (OPM), approximately 46 percent of the full-time hires in 2013 were veterans. Veterans now represent a third of the federal workforce.  Five years ago, President Obama began accelerating a hiring preference for veterans, in an effort to offset the bleak employment prospects they faced upon returning  from Afghanistan and Iraq.  “From the front lines to front of the line,” Express, p. 17, September 16, 2014.

The preference for hiring veterans is not new; rather, its origins date to the Revolutionary War.  According to OPM, “[t]hough no legal basis existed to govern the treatment of war veterans, certain soldiers were rewarded for their service by the Federal government.” http://www.opm.gov/policy-data-oversight/veterans-services/vet-guide.  Toward the end of the Civil War, the first legal basis for a veterans preference was created with legislation that gave a preference in appointments to disabled veterans who were otherwise qualified to perform the work.  An important amendment to the 1865 legislation was made in 1876, extending the preference to  honorably-discharged veterans who were subject to  reductions in force.  After World War I, in 1919, Congress enacted the Census Act, which no longer required a service-connected disability as the primary basis for granting a veterans preference, and introduced the concept of a spousal preference in the appointing process.

The veterans preference, as it exists today, derives from the Veterans Preference Act of 1944.  This Act essentially consolidated the previous provisions already in effect.  With a victorious end to World War II in sight, then-President Roosevelt wrote, “I believe that the Federal Government, functioning in its capacity as an employer, should take the lead in assuring those who are in the armed forces that when they return special consideration will be given to them in their efforts to obtain employment.”  “[T]he Act made clear that preference was to be a reward for patriotic duties by a grateful country willing to recognize the sacrifices of its servicemen when peace comes.  The Act would help ensure that veterans obtain or regain an economic position they otherwise would have attained had they not served in the armed forces.” http://www.opm.gov/policy-data-oversight/veterans-services/vet-guide.  The Veterans Preference Act provides that preference will be given in competitive examinations, in appointments to positions in the Federal service, in reinstatement to positions, in reemployment, and in retention during reductions in force.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was passed in order to “encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.” 38 U.S.C. § 4301 (a)(1).  USERRA prohibits discrimination in employment, retention, promotion, or any benefit of employment of employment on the basis of a person’s service in the uniformed services.  38 U.S.C. § 4311 (a).  “Uniformed services” includes the “Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.” 38 U.S.C. § 4303 (16).

Applying distributive justice notions to the Veterans Act and USERRA, veterans and uniformed service members would be considered the “most deserving”– in light of the sacrifices they made for the safety and defense of our country–and therefore entitled to the benefit.  The vital and dangerous combat roles that our veterans and service members undertake when they enlist is without question. However, is it equally apparent that skilled non-veterans applying for federal positions are “less deserving”?  Express quoted Robert Chaney, a senior mechanic (and a non-veteran) at the Government Printing Office, as saying that six of the eight electricians who joined the electrical shop in recent years were veterans, some of whom had no electrician's licenses.  He said that it is not until after they were hired that “you realize this guy doesn't know common electric components that a one- or two-year electrician should know.” Express, “From the front lines to front of the line,” p. 17.

The Veterans’ Preference is clearly an affirmative action, in that it gives a veteran a preference over similarly situated non-vets.  Therein lies the tension between the desire to benefit a group who deserve it and our notions of merit: the “winner” may be a veteran who does not have the skills or qualifications, while the “loser” is a skilled non-veteran who played no role in the injury.  When a less-skilled or less-qualified veteran is given a preference for a federal government position over a more-skilled or qualified non- veteran, the federal government's ability to hire the most-qualified persons may appear to be compromised.

Because the desire to protect returning veterans fulfills a duty to them accepted by society, however, that the Obama Administration's acceleration of the hiring preference for veterans has seemingly placed the burden of a difficult job market for veterans on the shoulders of non-veterans may be a burden we are willing to bear. “As far as corrective justice alone is concerned, the standards used in establishing the initial distribution are irrelevant.” Heidt, Corrective Justice from Aristotle to Second Order Liability: Who Should Pay when the Culpable Cannot?,” 47 Wash. & Lee L.  Rev.  347, 352 n.26.  Rather, the corrective justice query focuses solely on whether one party harmed the other, and the extent of the harm inflicted.  Id.  at 354.  In the case of the Veterans' Preference, the non-veteran candidates did not harm the veterans or take anything away from them, but they are denied access to the same employment opportunities as the veterans. In this situation, it does not appear that corrective justice is restoring the proper balance.

Not so fast. Aristotle also contended that, “[i]n applying corrective justice after a disturbance in the status quo,...one should look only to the loss or gain and the cause of the loss or gain....” Id. In the case of veterans, who volunteer to serve and safeguard their country–often at a significant sacrifice to their families and their own well-being–society has recognized that its gain from that sacrifice is immeasurable. Dealing with  finite goods–such as with employment opportunities – is a zero-sum game: a gain to one means a corresponding loss to someone else.  But, the benefit to  veterans from the preference in the employment context must be assessed in light of the corresponding gain they conferred upon society. At least with regard to the veterans' preference, the true and accurate assessment of “gains” and “losses” cannot be confined to the narrow tabulation of gains and losses of employment opportunities. Rather, the assessment must take into consideration the gains conferred and losses sustained in other contexts, such as protection of the country's people and resources and the price they’ve paid. 

Looking at veterans preferences through this lens, then, is consistent with Aristotle's notions of distributive and corrective justice. When we become myopic and self-centered, we lose focus on the greater picture, including the losses sustained and gains conferred on society as a whole.

Written by Valerie Chastain