by Susan M. Webman, Fortney & Scott, LLC
For a number of years, the issue of whether the Uniformed Services Employment and Reemployment Rights Act (USERRA) created a claim for hostile work environment based on membership in the uniformed services, a right not definitively named in the Act, has been raised in the trial courts. While divided, courts for the most part interpreted the statute to benefit protected service members, which is the guidance provided in the Act, and so found that there was such a protection in the statute. In addition, several circuit courts assumed, without deciding, that USERRA does provide for such a claim but disposed of the claim on other grounds.
That result was based on an expansive interpretation of what constitutes a “benefit of employment” under USERRA and was consistent with courts that have taken a more liberal view of statutes intended to discourage all types of disparate treatment in the workplace. USERRA’s plain language makes it clear that Congress intended to prohibit discrimination and acts of reprisal against service members because of their military service. In March 2011, the Fifth Circuit became the first and only federal appellate court to focus on this issue.
Court found USERRA had no harassment protection
A class of airline pilots, all members of reserve components of the armed forces or Air National Guard, alleged a pattern of harassment by their employer. The pilots alleged that management had “repeatedly chided and derided [them] for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations.” The harassment included not only disdainful comments about being associated with the military but also burdensome limitations on employees’ taking military leave. Managers made comments such as, “You need to choose between [the company] and the Navy.” Carder v. Continental Airlines.
Without going into great detail about the procedural aspects of the case, the issue was whether USERRA prohibited an employer from harassing military members or creating a hostile work environment for them. The case illustrates how a court that carefully reviews the language and history of a statute can reach an influential outcome that differs from other courts’ more general acceptance of a standard.
The court in the Carder case focused first on the plain language of USERRA and found that it didn’t include protection against harassment or a hostile work environment. While USERRA is an antidiscrimination statute, its language defined discrimination to include the denial of any “benefit of employment,” which in turn was defined to include any “advantage, profit, privilege, gain, status, account, or interest.” Nowhere to be found in the statute, however, were terms such as “harassment,” “hostility,” “antagonism,” “insults,” “disrespect,” or “disparaging comments.” Thus, the court held that the express language of USERRA did not allow a hostile work environment claim.
The court confirmed its result after it examined USERRA’s legislative history and the history of legal actions against a hostile environment under other laws. The court concluded that the purpose of the statute was to “encourage people to join the reserves,” not to discourage “invidious and irrational” discrimination against military members. Nor do U.S. Department of Labor (DOL) regulations support the pilots’ claim.
On the other hand, the court did recognize that if an employer created an environment so hostile or intolerable that a military member chose to quit, he would have a valid claim of constructive discharge based on USERRA’s clear prohibition against firing service members because of their military service. The court also noted that the pilots may have rights under USERRA based on benefits derived from contractual rights.
Basic Training for Supervisors: Military Leave
New amendment protects against harassment and hostile environment
In a quick turnaround after the Carder decision, Congress amended USERRA to allow for hostile environment claims as part of the bipartisan VOW to Hire Heroes Act, enacted by a unanimous vote in November 2011, which President Barack Obama immediately signed into law. The new law inserts into USERRA’s definition of “benefits” the language “the terms, conditions, or privileges of employment,” which has been used in other statutes to allow for hostile work environment claims. Accordingly, USERRA now has the same standard for hostile environment claims based on military status that governs Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, which could lead to liability even when an employee does not suffer a monetary loss.
What you can do
The quick and unanimous improvement to benefits for service members and the government focus on veterans’ employment signal a need for employers to review policies and procedures to ensure they pay adequate attention to the rights of service members and veterans. Supervisors also should have adequate training to understand what those rights and the company’s obligations require.