Washington Lawyer - November/December 2021 - 33

TAKING THE STAND
treatment. Veterans are protected in their
employment by an array of federal and state
statutes.9
The U.S. Congress first authorized
special benefits for veterans in 1811 and most
recently passed the Uniformed Services
Employment and Reemployment Rights Act
of 1994 (USERRA), which strengthened and clarified
a complicated set of previous measures.10
The public policy supporting veteran statutes
was aptly described by the U.S. Supreme Court
in Fishgold v. Sullivan Dryrock and Repair Corp.,
a 1946 case involving the Selective Training
and Service Act:
The Act was designed to protect the veteran
in several ways. He who was called to the
colors was not to be penalized on his return
by reason of his absence from his civilian job.
He was, moreover, to gain by his service for
his country an advantage which the law
withheld from those who stayed behind . . .
This legislation is to be liberally construed for
the benefit of those who left private life to
serve their country in its hour of great need.11
Congress drafted USERRA " 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 . . . and to prohibit
discrimination against persons because of
their service in the uniformed services. "
The statute has broad anti-discrimination
provisions.
Furthermore, courts have held that a veteran
can obtain the statute's protections based on
proof that discriminatory intent was a " motivating
factor " (but not the sole factor) in
an adverse employment event. Sheehan v.
Department of the Navy (2001) established that
proof of discriminatory intent can be inferred
from many sources, including the disparate
impact of a policy on the veteran population.12
Statutes such as the Vietnam Era Veterans'
Readjustment Assistance Act characterize
veterans as " specially protected " and require
affirmative action to advance the employment
of " covered veterans. " Based on the definition
of " covered veteran " in 38 U.S.C. § 4212, nearly
all veterans who have separated from service
since 1990 are included.13
PROTECTED BUT INVISIBLE
According to the Bureau of Labor Statistics,
veterans composed 7 percent of the U.S. adult
population in 2020, and veterans made up
5.5 percent of the civilian workforce. The
National Association for Law Placement (NALP)
first tabulated employment data for veteran
law school graduates in 2018, indicating that
2.6 percent of 2018 graduates were veterans.
Thus, veterans are underrepresented as a class
in the practice of law.
In its 2018 survey, the NALP concluded that
veterans who graduated from law school that
year were underrepresented in private practice
as compared to the class as a whole - 42.8
percent versus 54.8 percent. Veteran graduates
were three times more likely to be employed in
solo practice than the class as a whole (6.6
percent versus 2 percent), and were more likely
to be employed in very small law firms (1-10
lawyers) than the class as a whole (36.9 percent
versus 33.9 percent). Veteran graduates were
also underrepresented in judicial clerkships
compared to the class as a whole (7.7 percent
versus 11.2 percent).14
As reported in the NALP Directory of Legal
Employers (NDLE), veterans in 2019 were more
likely to be partners at smaller law firms (fewer
than 250 attorneys) than large law firms (2.28
percent versus 1.67 percent). Veterans were also
overrepresented in the " of counsel " position at
large firms compared to the firm as a whole.15
There does not appear to be any data tracking
veteran appointments to leadership positions
in MDLs and class action cases. A sampling of
some of the larger mass tort MDLs, however,
indicates that veterans are underrepresented in
MDL appointments. For example, in MDL 2672,
In re Volkswagen " Clean Diesel " Marketing, Sales
Practices, and Products Liability Litigation, none
of the appointments to the Plaintiffs Steering
Committee was a veteran. In MDL 2436, In
re Tylenol (Acetaminophen) Marketing, Sales
Practices, and Products Liability Litigation, none
of the appointments to the plaintiffs' leadership
positions was a veteran. In MDL 2808, In
re National Prescription Opiate Litigation, one
veteran was added to represent the interests
of hospitals.
While there are certainly veterans in the ranks
of those appointed to MDL leadership positions,
there is no clear evidence of an intentional
effort to appoint veterans to those
positions. This fact stands in contrast to the
well-documented and well-coordinated efforts
to improve the representation of women, nonwhites,
attorneys with disabilities, and LGBTQ
attorneys.
Veterans are invisible even though they are the
oldest protected class and public policy has
historically extended advantageous treatment
to them. There does not appear to be a principled
basis to exclude veterans from the
diverse categories identified in the 2018 MDL
guidelines and the 2021 inclusivity guidelines.
The remedy for this omission is simple: revise
them to include veterans.
Robert F. Redmond Jr. is a partner at
McGuireWoods LLP where his practice focuses
on mass tort, product liability, and complex
commercial litigation. He has tried numerous
multimillion-dollar cases to verdict in state and
federal courts. Prior to entering private practice,
Redmond was a prosecutor for the U.S. Army in
the 82nd Airborne Division at Fort Bragg, North
Carolina.
NOTES
1 2018 MDL Guidelines at vii-viii.
2 Before the Duke Law Center for Judicial Studies
published the first MDL guidelines in 2014,
standards for managing MDLs were largely
extrapolated from the Manual for Complex
Litigation, the Federal Rule of Civil Procedure 23,
and the Code of Conduct of United States Judges.
See " 2021 Inclusivity and Excellence Guidelines, "
pp. 4-7.
3 " Guidelines and Best Practices for Large and MassTort
MDLs, " available at https://scholarship.law.
duke.edu/bolch/5.
4 74 La. Law Review, 391, 393 (Winter 2014).
5 " Inclusivity and Excellence: Guidelines and Best
Practices for Judges Appointing Lawyers to
Leadership Positions in MDL and Class-Action
Litigation, " available at law.gwu.edu/humphreyscenter-publishes-diversity-guidelines-and-bestpractices.
Editorial control over the diversity
and inclusion issues related to the 2018 MDL
Guidelines was transferred from the Center
for Judicial Studies to the George Washington
University James F. Humphreys Complex
Litigation Center in August 2020.
6 Id. at iii.
7 Id. at 1, 18-26.
8 Id. at 4, 7, 12.
9 See, e.g., 40 Va. Code § 40.1-27.2; Mass. Gen.
Law Chapter 151B § 4. State statutes are further
evidence of the well-established public policy
favoring advantageous treatment of veterans.
10 38 U.S.C. §§ 4301-4335.
11 328 U.S. 275, 284, 285, 66 S.Ct. 1105, 1110-11 (1946).
12 240 F.3d 1009, 1013 (Fed. Cir. 2001) citing 38 U.S.C.
§ 4311(c)(1).
13 38 U.S.C. § 4212(a).
14 nalp.org/0220research#table1.
15 Id.
NOVEMBER/DECEMBER 2021
* WASHINGTON LAWYER 33
https://www.scholarship.law.duke.edu/bolch/5 https://www.scholarship.law.duke.edu/bolch/5 http://law.gwu.edu/humphreyscenter-publishes-diversity-guidelines-and-best-practices http://law.gwu.edu/humphreyscenter-publishes-diversity-guidelines-and-best-practices http://law.gwu.edu/humphreyscenter-publishes-diversity-guidelines-and-best-practices http://www.nalp.org/0220research#table1
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