- Fifth Circuit Finds USERRA does not Permit Harassment Claims
- April 6, 2011
- Law Firm: Ford Harrison LLP - Atlanta Office
In Carder v. Continental Airlines (5th Cir. March 22, 2011), the Fifth Circuit Court of Appeals held that the Uniformed Services Employment and Reemployment Rights Act (USERRA) does not provide a cause of action for harassment claims. Accordingly, the Court affirmed the dismissal of a class action filed against the airline by a group of pilots who claimed they were subjected to a hostile work environment because of their military service and service obligations.
One of the purposes of USERRA is to prohibit discrimination and acts of reprisal against service members because of their service. Specifically, USERRA provides that members of the uniformed services "shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment" on the basis of that membership. Although the text of the statute defines "benefits of employment" to include a long list of terms, it does not refer to "harassment, hostility, insults, derision, derogatory comments, or any other similar words." Thus, the court held that the express language of the statute does not provide for a hostile work environment claim.
Further, the court found that Congress did not intend to create a cause of action under USERRA for harassment of service members. First, the court noted that the language of USERRA is not similar to that of other antidiscrimination laws that have been held to prohibit harassment. The court noted that in Meritor Sav. Bank, FSB v. Vinson, the U.S. Supreme Court relied heavily on Title VII's language prohibiting discrimination with respect to the "terms, conditions or privileges of employment" in permitting a plaintiff to assert a harassment claim under Title VII. The court held that the Meritor opinion makes it clear that it is the word "conditions" in particular that the Supreme Court relied on in inferring a claim for harassment under Title VII.
Although USERRA was passed in 1994, years after the Supreme Court's decision in Meritor was announced, it does not include the phrase "terms, conditions, or privileges of employment" or similar wording. The court held that if Congress intended to create a cause of action for harassment based on military service under USERRA, it could have easily expressed that intent by using this phrase. According to the court, the fact that Congress did not do so but instead used the narrower term "benefits of employment" indicates that "Congress intended to create a somewhat more circumscribed set of actionable rights under USERRA."
Further, the court found little evidence that employers harbor a negative stereotype about military service "or that Congress believes they do." The court also found nothing in the legislative history of USERRA to indicate that Congress "believed invidious and irrational harassment of members of the military in the workplace comparable to harassment addressed by Title VII is a widespread social problem in need of a remedy." Bolstering its decision, the court noted that the Department of Labor's regulations implementing USERRA do not mention employer harassment on the basis of military service, the creation of a hostile work environment or any other type of comparable claim.
Thus, while clarifying that "nothing in this opinion alters the ability of service members to sue under USERRA for the denial of contractual benefits of their employment on the basis of military service as defined in the statute," the court concluded that "service members may not bring a freestanding cause of action for hostile work environment against their employers."