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

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