From the Desk of John M. Kreutzer: Is a public employer required to apply a preference to a veteran or disabled veteran at each stage of the hiring or promotion process? When a violation of the veterans’ preference law is found can the violator be on the hook for emotional distress damages? Read on to see how the Oregon Court of Appeals recently answered these questions.
Claims Pointer: The Oregon Court of Appeals affirmed the order of the Bureau of Labor and Industries, concluding that the Multnomah County Sheriff’s Office violated the veterans’ preference law by having an insufficient preference method for veterans and disabled veterans, and, therefore, the Bureau was correct in ordering the Sheriff’s office to devise a method to apply the preference at each applicable stage of a multistage hiring or promotion process. The court also affirmed a $50,000 award to the disabled veteran for emotional distress damages.
Employer Takeaway: Oregon private employers are not implicated by this decision, but are well reminded that BOLI can award damages, including emotional distress damages. Washington employers should be aware that pursuant to RCW 73.16.110, private employers can extend Verterans’ Preference to their employees without running afoul of Civil Rights actions. It is in their best interests to apply their Veterans’ Preference policy consistently.
Multnomah County Sheriff’s Office v. Edwards, et al., 277 Or App 540 (April 13, 2016).
The Multnomah County Sheriff’s Office (MCSO) posted an internal job announcement seeking applicants for promotion from a sergeant to a lieutenant position. Three sergeants applied, including Sergeant Edwards, a disabled veteran. All three were accepted as candidates. Under Oregon’s veterans’ preference law, public employers must grant a preference to veterans when hiring for certain types of civil service positions. Edwards did not receive the promotion.
Edwards filed a complaint against MCSO with the Bureau of Labor and Industries (BOLI) alleging that he was a victim of unlawful employment practices. BOLI found that MCSO failed to devise and apply a method of giving disabled veterans special consideration in its unscored application process. BOLI awarded Edwards $50,000 in emotional distress damages and ordered MCSO to develop a coherent, consistent, written, and reasonable method by which to apply veterans’ preference at each stage of any hiring or promotion decision in order to meet the statute’s criteria. MCSO sought judicial review of BOLI’s order.
The Oregon Court of Appeals affirmed BOLI’s decision, holding that BOLI correctly interpreted and applied the veterans’ preference law and did not err in its award of emotional distress damages. The Court rejected MCSO’s argument that BOLI misinterpreted the law and that it was not required to have a method in place to grant the preference at each stage of the hiring or promotion process. In reviewing the statutory text, the court found that the legislature intended to first mandate that the employer give veterans a preference, and second, to provide how to give that preference, namely by devising and then applying a method of giving special consideration. The court disagreed with MCSO that its methods of granting a preference at either the interview stage or the final hiring stage were adequate.
The Court also concluded that the award for emotional distress damages was supported by substantial evidence. In particular, Edwards provided substantial and convincing testimony to support his claim, namely that he felt his military service was being discarded and overlooked. Furthermore, he testified to experiencing physical and emotional reactions as a result of the process, including physical signs of stress, weight gain, and that his relationships suffered. The court also concluded that the award was comparable to prior awards granted by BOLI. The court rejected MCSO’s argument that BOLI lacked legal authority to grant the award because MCSO failed to preserve the argument or raise an objection despite several opportunities. Interestingly, the court was also unwilling to review the issue under a plain error standard because no Oregon court previously analyzed whether BOLI had the authority to award damages in the context of a veterans’ preference law violation and, thus, the issue was not apparent, obvious or undisputed.
In conclusion, the court affirmed BOLI’s order that MCSO violated the veterans’ preference law, MCSO was required to devise a method to apply the preference at each stage of the hiring process, and substantial evidence supported the damages award.