USERRA Does Not Provide A Claim For Hostile Work Environment

Court Finds Law Only Prohibits Denying A “Benefit Of Employment” Because Of Military Status

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to prohibit civilian employers from discriminating against employees engaged in military service. The law states that employees who perform military service “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of that service.

In a case of first impression, the Fifth Circuit Court of Appeals recently held that the language of the statute does not create a cause of action for “hostile work environment” against military service members. Jeffrey Londa and Flyn Flesher, attorneys in Ogletree Deakins’ Houston office, represented the employer in this case. Carder v. Continental Airlines, No. 10-20105, Fifth Circuit Court of Appeals (March 22, 2011).

A group of Continental airline pilots filed a class action lawsuit alleging various violations of USERRA, including that they had experienced a hostile work environment based on their military service. The trial judge recognized that USERRA “expressly prevents the denial of benefits of employment to members of the uniformed service by their employers.” However, the court said that “under a plain language analysis, the scope of this protection does not include safeguarding from a hostile work environment.” The workers appealed the ruling, and the Fifth Circuit upheld the decision.

In its analysis, the Fifth Circuit pointed to the language of the statute itself, citing the definition of the term “benefits of employment” which, under USERRA, includes any “advantage, profit, privilege, gain, status, account or interest (including wages or salary)” associated with employment. Based on that language, the court found that the term “benefits of employment” does not include the absence of harassment, hostility, insults or other similar words or comments.

The Fifth Circuit also cited the legislative history of USERRA, and the fact that other anti-discrimination statutes, including Title VII of the Civil Rights Act and the Americans with Disabilities Act, specifically protect the “conditions” of an individual’s employment, which has been interpreted by the U.S. Supreme Court to include more than the benefits and remuneration associated with employment. USERRA contains no such language, even though that Act was passed after the Supreme Court’s reference to such “conditions,” leading the court to believe that the Act was not intended to provide for a hostile work environment claim to the same extent as Title VII and other anti-discrimination statutes containing that phrase. According to the Fifth Circuit, “Congress intended to create a somewhat more circumscribed set of actionable rights under USERRA.”