As thousands of Reservists and National Guardsmen and women return home from overseas campaigns to a less-than-booming economy, it has become hard not to notice the employment-related challenges facing military families. In 2001, the Defense Department began deploying record numbers of non-career military personnel under to a new manpower strategy designed to respond to unprecedented security needs. Since then, close to one million Reservists and Guardsmen and women have left their civilian jobs to serve abroad and returned home again, in many cases multiple times, logging absences of up to fifteen months.
Unfortunately, since 2009, complaints from service members about poor treatment at work before and after deployment have been on the rise, and a pair of recent Court of Appeals cases highlights the new prominence of the issue of service member harassment.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is designed to protect service members from employment discrimination, and in turn support the readiness of the U.S. Armed Forces. USERRA requires employers not only to rehire, but also to retain employees who return from active duty for a specific period of time. USERRA expressly prohibits “deni[al][of] initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of [veteran status].” 38 U.S.C. § 4311(a).
More generally, the statute enumerates the following purposes of USERRA:
(1) to encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;
(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and
(3) to prohibit discrimination against persons because of their service in the uniformed services.
38 U.S.C. § 4301(a).
While many HR managers are by now familiar with USERRA’s specific prohibitions, confusion arose about whether USERRA’s broad anti-discrimination language also prohibits hostile work environment harassment on the basis of military status, a question at issue recently in both Dees v. Hyundai Motor Manufacturing Alabama LLC (11th Cir. 2010), and Carder v. Continental Airlines, Inc. (5th Cir. 2011), each of which reached different conclusions.
In Dees, the Eleventh Circuit declined to specifically determine whether the claim was available, but affirmed a district court decision acknowledging hostile work environment’s viability. The plaintiff alleged that his supervisors resisted allowing weekend National Guard training, made derogatory comments about the Guard, tried to force his co-workers to submit false disciplinary reports against him, and assigned him to harder, more dangerous work than his co-workers. Emphasizing USERRA’s overarching purpose, the lower court had pointedly observed that “assurance that employees cannot be fired on account of their military service is meaningless without assurance that the work environment will not be so intolerable that they will feel forced to quit.”
In Carder, the Fifth Circuit compared the language of other federal statutes that give rise to claims for hostile work environment, like Title VII (“terms, conditions, or privileges of employment”) to USERRA’s language (“any benefit of employment”). Plaintiffs alleged that their supervisors “placed onerous restrictions on taking military leave and arbitrarily attempt[ed] to cancel military leave,” accused them of running “scams,” and announced that “[y]ou need to choose between [your civilian job] and the Navy.” The court asserted that because Congress passed USERRA years after the landmark Supreme Court case acknowledging hostile work environment under Title VII, Congress’s failure to employ the exact same statutory language indicated an intent not to incorporate judicial interpretations recognizing the claim.
In an unusually swift and cooperative response, Congress passed the Vow to Hire Heroes Act amending USERRA on November 21, 2011. The legislation updated the definitions section of the statute in 38 U.S.C. § 4303(2) to specifically add ‘‘the terms, conditions, or privileges of employment” to the definition of “benefits.” In doing so, lawmakers made clear their intent to make claims of hostile work environment harassment on the basis of military status actionable under USERRA.
Employers should now be alert that hostile work environment harassment of service member-employees is unlawful, and a potential source of liability. Accommodating Reservists’ often-unpredictable work schedules puts undeniable stress on employers struggling to maintain their payrolls. It is important to bear in mind, however, that USERRA’s purpose is not only to benefit the men and women who sacrifice for this nation, but also to protect this country by maintaining robust military manpower. Doing our best to support service members in the workplace helps not just non-career military personnel, but all of us.