• New Law Expands USERRA to Recognize Hostile Environment Claims
  • November 24, 2011 | Authors: Conrad Shawn Kee; Matthew F. Nieman
  • Law Firms: Jackson Lewis LLP - Stamford Office ; Jackson Lewis LLP - Reston Office
  • A new law passed with bipartisan support and signed by President Obama may make it easier for individuals to sue their employers for discrimination on account of their military status. 

    Although key provisions of the Veterans Opportunity to Work (VOW) to Hire Heroes Act  strive to reduce unemployment rates for veterans of the Iraq and Afghanistan conflicts, the legislation also amends the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to recognize claims of hostile work environment on account of an individual’s military status generally.

    Historically, federal courts have been reluctant to recognize hostile work environment claims under USERRA.  For example, in Carder v. Continental Airlines, No. 10-20105 (5th Cir. Mar. 22, 2011), airline pilots who were members of the Reserves and National Guard pursued a class action against their employer, asserting management had “repeatedly chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations.”  The Fifth Circuit dismissed their claim, holding that hostile work environment claims were not actionable under USERRA when the employee did not suffer the loss of a tangible benefit or the conduct did not rise to the level of constructive termination.  See Federal Appellate Court Rejects Hostile Environment Theory under USERRA.

    By amending USERRA to prohibit discrimination with respect to the “terms, conditions, or privileges of employment,” the VOW to Hire Heroes Act establishes the same standard for hostile environment claims on account of military status as that governing Title VII and other employment discrimination laws.  Employers, as a result, will find it more difficult to obtain dismissal of USERRA claims even where the employee has not suffered a tangible loss.

    There is limited statistical information available on the number of USERRA lawsuits filed nationally, but Jackson Lewis’ litigation tracking suggests a significant increase in such lawsuits within the past few months.  As the unanimous vote to amend USERRA suggests, USERRA plaintiffs can find a highly sympathetic audience.  USERRA also contains a number of technical provisions that employers may violate unintentionally.

    The USERRA amendments and the recent Supreme Court decision in Staub v. Proctor Hospital (see Supreme Court Recognizes Cat’s Paw Liability in Army Reservist’s USERRA Discrimination Case) highlight the need for employers to take preventive action.  First, employers should consider training supervisors regarding USERRA compliance.  Second, employers should review equal opportunities policies and compliance procedures to ensure they include military and veteran status.  Third, as Farragher/Ellerth defenses will likely apply to USERRA hostile environment claims, employers should provide reporting procedures for USERRA-covered workplace complaints and promptly investigate such complaints.