Why Not Ask?

LivindonSouth

[font size="1" color="#FF0000"]LAST EDITED ON 06-16-05 AT 03:17PM (CST)[/font][br][br]In another thread on questions to not ask in interviews, Christy refers us to a monthly newsletter. One of the questions the newsletter cautions against asking is 'Did you receive a military discharge other than honorable?' Will somebody please tell me what discriminatory flag that might raise? We have every bit as much right to ask that as we do about convictions for civilian crimes. Dishonorable and other than honorable do not, as far as I know, raise a shield of protection for any protected group. As relates to future employment, there is no special protection afforded those who are drummed out of the military or who are found guilty of infractions while in the military. I do not find this prohibition in USERRA either. What have I missed?

I also require a copy of a DD-214 with an application, just as I would a resume or other piece of information upon which to consider backround.

safety

I can't wait for the responses, we just updated our applications and that is one of the questions.

Peyton Irby MS

I know of no reason not to ask. Many employers add the phrase "An affirmative answer does not automatically disqualify you from consideration." Many years ago, the EEOC took the position that it was discriminatory to ask that question as well as the conviction/plead guilty question. This was due to the theory that minorities had higher incidents of convictions/dishonorable discharges. This theory has not been used in any case I am aware of in quite some time.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

TN HR

Off the top of my head I can come-up with several reasons, all of which point towards some sort of protection either by federal or state law. A couple of them may offer no protection at all but perhaps are just too close to the line.

A service member may have received a general-under-honorable for being a homosexual, being a single parent and failing to execute a proper care plan, being overweight, being a conscientous objector due to a strongly held religious belief, the list goes on and on.

Gene

VS

What is a DD-214 form? I'm guessing discharge papers??? Obviously, from my question, and all the years I have recruited, the DD-214 was not a part of the process!

Thanks!

National Guard

TN HR you are way off the mark. none of those you listed would get a dishonorable discharge. Some might get "general;" under honorable conditions" But even then the soldier can petition for honorable and have it granted. Hardly anyone today gets dishonorable discharge. Only those convicted of Court Martials for example, armed robbery, murder, desertion (which is still realistic in today's Iraq situation)assault and so on.

As Don said, I don't think murderers are a protected class.

TN HR

Re-read my post. I never said dishonorable. I specifically said general, under honorable, which as a characterization of service, IS NOT an honorable discharge and would cause you to answer the question posed in the affirmative.

The reason I used those examples are because I personally processed those while on active duty. Yes, they were unique in their own special way, but that's the way it went down.

Gene

pork1

VS: The DD214 is the one document that is maintained by veterans of Military Service, that is the complete certified record of military service, regardless of the service. It is the one document that is required presentation for any benefit that should come one's way. When I die, my wife must present the DD214 along with the death certificate to collect any benefit that my estate might be entitled to receive. It is the one document that is kept in my mother's safe deposit box along with my deceased father's, my brother's, and my brother-in-law. When she passes, if I,m still here, I'll take over the safe deposit box and maintain the security of the documents for all of us.

Thanks for asking.

PORK

National Guard

Yes, but you are suggesting that being overweight (Or a single parent etc.)leads to a dishonorable discharge which it doesn't, it is not even under honorable conditions it is an honorable discharge because the Army just doesn't let you re-enlist - puts a bar to re-enlistment on the soldier. Why even bring up "dishonorable under honorable conditions?" It is also sort of clouding the issue. I thought most of the forum was concerned about hiring someone with a dishonorable discharge period. Anyone leaving the Military today with dishonorable has been convicted of a crime.

TN HR

Guard, if you're still at Pickett I suggest it's perhaps the heat getting to you. I have never said anything about "dishonorable" or even "dishonorable under honorable". My point is that Don simply asked for some reasonable rationale behind the article's suggestion. I offered some examples from personal experience. Besides, your explanation of what any of the services do today as far as separations go is irrelevant to the issue since we are likely to see separated soldiers from 10, 15, 20 years ago not just today!

Gene

National Guard

[font size="1" color="#FF0000"]LAST EDITED ON 06-16-05 AT 05:51PM (CST)[/font][br][br]Point taken about "dishonorable" but its been that way for more than 10 years. And, I think the majority of applicants are from those separated 1 to 10 years ago. I disagree that most applicants are from 10, 15, and 20 years ago.

Perhaps the article should have said not to ask WHY a person was discharged; in case they answer that they didn't pass a random drug test and they are a recovering addict from their horible experience in combat.

Yes it is very hot here. Training has been shut down two days now between 1130 until about 1830. We're not allowed to do anything-resume training in the evening and start training earlier in the morning.

TN HR

Here's a bit of gee-whiz info regarding the DD-214 for all fellow veterans or soldiers preparing to separate from service. You can take your original DD-214 to any court in any municipality across this great land of ours and have it entered into their archives where it will be duly recorded and forever maintained in safekeeping. You can then ask for one or two "certified true copies" to keep handy, knowing that the original document is safe and easier to get a hold of then sending off for one from the red-tape crap hole in St Louis.


Pork, I think I saw yours preserved at the national archives. It was signed by Horatio Gates, Adjutant General, Continental Army. Just kidding.

Gene

LivindonSouth

As I said, notwithstanding all this veteran posturing and Bull-Sh*t, an employer's representative can ask this question in an interview just as freely as he can ask the applicant to tell him about the last time he stole a pencil. There is no legal reason why an employer cannot make this inquiry and I intend to continue to ask it as I have for several decades. And the author of the MLSmith article, having not surfaced, cannot possibly defend his position.

TN HR

Although I listed some potential reasons above at Don's urging, I really do think it is perfectly OK to ask. It is no different than asking someone if they've ever been terminated from a job.

VS

Thanks Pork and TN for the explanation. Now you make me wonder if my dad, who is a WWII vet, who fought at Normandy, Battle of the Bulge, and three other major battles, has this document. He, nor my mom have ever said anything about it. My dad won't talk about the war. I only got a couple of stories out of him. Would love to know more, but....

Thanks for the education. With experiencing greater and greater numbers of employees going to Iraq, it is good to understand as much as possible.

LivindonSouth

GeNe sayS, "A service member may have received a general-under-honorable for being a homosexual, being a single parent and failing to execute a proper care plan, being overweight, being a conscientous objector due to a strongly held religious belief, the list goes on and on."

In summary, none of those points to any sort of protected class (except perhaps in a few states like California and Vermont). Not that I would ask, but being a homosexual does not grant one protected class status. Nor does not taking care of your child properly. Nor does being overweight, although I suspect that would be a medical discharge. And certainly being a conscientious objector grants one no protections under any law in civilian society. Maybe this list that 'goes on and on' will surface so that we might see some rationale for the article telling us to not ask the question about discharge. Or maybe Christy will ask the author to reply.

(At least I've learned something on this thread. I had no idea PoRk served in that era.)

SMace

Don't forget NY and NH. They have state laws protecting sexual orientation. I'm sure there are others, but those are two states where we have plants.

TN HR

C'mon Don, surely you can see that divulging one's status as a conscientous objector due to a strongly held religious belief opens a door you may not want to go down. Why open yourself to table religion observance during an interview?

I didn't offer these suggestions as the absolute, factual basis for the article. I simply stated why they might be possibilities.

I don't see anyone else offering any ideas.

Gene

Crout

Do they still give "medical" discharges? Assuning they do, (it sounds like Gene and Nat'l Guard would know for sure) wouldn't asking the question about less than honorable discharges be akin to asking about an applicant's medical history? Or is that too much of a stretch?

System

Okay, I asked the attorney who wrote the article for an answer and he sent his answer yesterday afternoon:

"This guidance comes from the Fair Inquiry Guidelines issued by the EEOC.
The EEOC does not provide a basis for its position but I assume it is
concerned about information disclosing a disability or an arrest record."

I did a little more research this morning to find the Fair Inquiry Guidelines. This is what the guidelines say:

[b]Military [/b]

Unlawful Inquiries: Type or condition of military discharge. Request for discharge papers.

Lawful Inquiries: Inquiries concerning education, training, or work experience in the armed forces of the United States. (Note: in many areas, veterans are a protected class.)

The guidelines are listed several places on the Internet. Here's a link:
[url]www.stat.washington.edu/www/jobs/questions/[/url]

System

[font size="1" color="#FF0000"]LAST EDITED ON 06-17-05 AT 09:51AM (CST)[/font][br][br]Well now, that article didn't give any more information than what we already have. No reason is given other than in some states military service is a protected class. I see nothing different in asking about military discharge than asking about why you left a former employer.

P.S. I noticed the questions about address. I never accept a post office box as a valid address. The employee does not report to work from a mailbox. Maybe tell us more about that one.

LivindonSouth

The EEOC has no authority to make law or to make anything unlawful. It is not unlawful to ask for type of discharge. Guidelines for safe interviewing are one thing. Passing those guidelines off as law is quite another. And remember, with the narrow exception of the ADA constraints, it is NOT unlawful to ask questions in an interview. The only thing that might be unlawful would be what you might do discriminatorily after you got the answer.

And knowing that someone claimed conscientious objector status should never lead to a discussion of their religion. There are several reasons for claiming that status. No interviewer with half a grain of sense would explore that down the path of religious discussion.

I'll go with the answer provided by the publisher of the MS Law Letter, provided above.

LarryC

Asking about types of discharges is akin to asking about why someone left a previous employer.

With evidence of military service on an application or resume, I will inquire about what type of discharge he /she received. In light of AND in spite of everything I have read here on this subject, I will continue to inquire about types of discharges. I've never lost a lawsuit. Go ahead and sue me.

System

Don:

You are right that the miliary discharge question simply comes from EEOC guidelines ... not law. Thanks for asking about the question and rooting out it's origin.

Just to clarify, though, the article does not pass those guidelines off as law. It is simply a list of "no-no" questions when interviewing, considering "what the various employment laws say you can't ask [b]or[/b] what might suggest to an outsider that you're considering an impermissible trait in evaluating candidates."

As you say, the article is meant as "guidelines for safe interviewing."

Christy

Parabeagle

After reading all these responses, I keep coming to the question: Why would you ask? What relevance does the answer have to the job you're trying to fill? Aside from the point made by many (a valid point, IMHO) that you might uncover some protected class information, I have always erred on the side of caution and ask only questions that are directly related to the individual's ability to do the job for which he is interviewing.

If you're really concerned whether someone received a dishonorable or a bad conduct discharge, it should show up if you do a criminal background check. DD's and BCDs can only be adjudged by a courtmartial, which would appear on a background check as a federal conviction.

As an aside, there are many types of discharges other than the widely known honorable discharge, which are not punitive in nature.

Again, my question is, why ask to begin with?

Gillian3

The reason that the EEOC has that guidance about discharge is that minority groups get discharged more frequently than the majority group. And don't ask me to prove that, because I don't know anything about discharge rates. It is the same theory as the idea that a high school diploma is not a valid requirement because minority groups have a higher drop-out rate than the majority group. I doubt that there has been cases relating to failure to hire because of discharge status but there has been regarding high school diploma's. The background theory is that such requirements, while not used as an intentional discriminatory tool, have the unintended effect of discriminating against a minority group, thus are just as invalid as intentional discrimination because the outcome is the same.

The guidance is old and I don't know whether or not it has much validity today. I would hope, though, that someone who received a dishonorable discharge umpteem years ago would receive the same consideration as someone who was fired from a job umpteen years ago.

LivindonSouth

To answer Parabeagles inquiry as to 'why ask?', I always ask somebody why they left their prior jobs. If it's not clearly indicated on their application, it's part of the standard interview. This includes military. If military service tends to mask a significant segment of time on an application, the applicant is not shielded from inquiry from me. Why did you leave the service? What discharge did you receive? What is your MOS? What was your rank? All of those are legitimate inquiries. Relating it to civilians I would ask, similarly, Why did you leave this job? What was your job there and tell me a little about how you did it? Were you in any sort of supervisory capacity, lead person or a trainer of others?

I don't wear one hat to interview a caucasion, another to interview a veteran and another to interview an old woman. Nor will I put on my EEOC shades to interview someone I suspect might be in a protected group.

pork1

[font size="1" color="#FF0000"]LAST EDITED ON 06-17-05 AT 02:04PM (CST)[/font][br][br]DON: Just remember where your information came from, you must be careful not to believe all that you read which comes out of the fingers of TN HR, that man is "just not right", I guess to many hound dawgs have been a biting at his heels. That information can not be validated by the SAVE PROGRAM! Damned nation, I did it again!

PORK

TN HR

Uh, pOrK, are you feeling OK today? Your post above made no sense at all.

LivindonSouth

I think he was referring to your referring to his service in the Spanish-American war or something like that.

pork1

NO SENSE? It is very easy to read and understand and was written for the purpose of spreading the WORDS "SAVE PROGRAM" across this great Nation of ours. I will continue venting my opportunites every time you post on this FORUM. I do this so that the HR professionals will take a chance and check it out. Like it or not the 12/31/2005 date is coming, regardless of your difficulty with the use of the SAVE Program, which is open nation wide for all employers. By then, you may not have a choice of whether to use ON-LINE VERIFICATION OR NOT.

Yes, I am feeling just fine and enjoying life as a professional HR better with every turn of the day.

Vet may your day be Blessed, even today, AND MAYBE THE WHOLE WEEK-END.

PORK