Military Leave Rights

Sexual harassment and assault against female members of the military remains a persistent problem that has rightfully received heightened attention in the last few years in the hope that it can be eradicated from all branches of our armed forces. Gender-based harassment and assault are prevalent in the world of veterans affairs as well, and the area of veterans’ health care in particular has come under scrutiny.

According to a national Health Services Research and Development survey conducted by the U.S. Department of Veterans Affairs (VA), 25% of women patients at VA health care facilities have experienced sexual or other harassment from other veterans. The VA defines patient harassment as “unwelcome physical, non-verbal or verbal behavior that interferes with a veteran’s access to and sustained engagement with VA health care. Harassment creates an intimidating, hostile or offensive health care environment.” The VA also provides examples of harassing conduct. For instance, the VA recognizes the failure to acknowledge women as veterans as gender harassment, and it occurs when someone asks a woman veteran if she is accompanying her husband to an appointment or questions her about the authenticity of clothing identifying a branch or era of service. On Vantage Point, the official blog of the VA, it also lists catcalls, whistles, stares, leering or ogling, telling women to smile, telling women they are too pretty to be veterans and following or cornering someone as examples of gender-based harassment. By all appearances, the VA is working to identify, educate veterans about, and eradicate this type of sexual harassment.

However, some question the VA’s dedication to gender equality and safety in its health care facilities after Andrea Goldstein, senior policy advisor on female veterans to the House Committee on Veterans Affairs and lieutenant commander in the U.S. Navy Reserve, alleged she had been sexually assaulted at a government-run veterans’ hospital. Goldstein, who has chosen to make her identity known, claimed in September 2019 that while she was waiting in line to buy food in the main lobby of the VA hospital in Washington, D.C., a contractor rubbed his body against hers and made suggestive comments of a sexual nature. Since that time, the VA and specifically its Secretary of Veterans Affairs for the Trump administration Robert Wilkie’s handling of her claim have come under scrutiny. The ensuing investigations have raised serious questions about how the VA handles complaints of sexual harassment, assault and retaliation and point to larger societal problems of victim-blaming and refusing to address systemic problems of gender equality and respect for female veterans.

A recent legal decision highlights the swiftness with which employers must rehire employees returning from active military duty. In Harwood v. American Airlines, the United States Court of Appeals for the Fourth Circuit found that a delay of six or eight weeks was too long after the end of active military duty to rehire an employee. The Court ordered the airline to pay back wages to the plaintiff, a commercial pilot and major general in the Airforce Reserve. The decision came from the Fourth Circuit, which considers legal disputes arising out of federal laws in Maryland, Virginia, West Virginia, and North and South Carolina. The federal law at issue was the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is law in every state, including New Jersey.

Harwood was on military leave from his job with American Airlines from June 2013 through August 2015, and informed his employer of his intent to return to work following the end of his leave. In preparation for his return to American Airlines, Harwood had to obtain a medical certification from the Federal Aviation Administration (FAA). Because he had been diagnosed with atrial fibrillation during his military tour, the FAA denied the certification. Over the course of the next two months, Harwood and American Airlines communicated regarding his medical issue and potential resolutions to get Harwood back to work. Because he was not medically cleared to fly by FAA standards, American Airlines offered to extend his military leave until the medical waiver came through or, alternatively, to create a position appropriate for his status and with equal pay. Ostensibly, the airline was working diligently and in good faith to return the plaintiff to his former status within the company. However, the airline made its employment offer in late October, approximately six weeks after Harwood’s military leave ended and two months after he had informed his employer of his intent to return to work.

Harwood declined both options offered by American Airlines and spent the next three months on military active duty, receiving military pay. Approximately five months after his deployment ended, Harwood decided to accept American Airlines’s offer for the custom position. On that same day, he received his medical waiver to fly so he was reassigned as a domestic flight captain.

Articles Posted in Military Leave Rights

The Persistent Problem of Sexual Harassment and Assault within the Military

Even Negotiations In Good Faith Will Not Protect an Employer Who Fails to Promptly Rehire an Active Duty Military Service Employee Upon Return From Deployment