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Employment Discrimination Against Military Spouses: Illegal Contrary to Popular Belief and Practice Open Access

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It is widely believed that employment discrimination against military spouses is perfectly legal. As a practical matter, however, discrimination against military spouses violates federal and state anti-discrimination statutes. Due to characteristics of military spouses as mostly female, on average more educated, and more ethnically diverse than civilian counterparts, employers who treat military spouses less favorably may find themselves in violation of Title VII, Section 1981, or various other anti-discrimination statutes. Title VII claims may be based on discriminatory treatment or disparate impact theories of proof. A claim of discriminatory treatment can be based on pure sex- or race-based stereotyping, a mixed motive theory, protected status “plus” discrimination, or a pattern or practice suit. Discrimination against military spouses can also constitute illegal disparate impact by having an impermissible discriminatory effect on women or minorities. Issues of proof are foreseeable for disparate impact cases involving military spouses due to sparse statistically significant data. Some efforts have been made at alleviating the effects of military spouse discrimination. However, the most effective means of solving the problem lies in amending the Uniformed Services Employment and Reemployment Act (USERRA) to include spouses in employment protections for military members.

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