The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to prohibit civilian employers from discriminating against employees engaged in military service, and 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 5th U.S. Circuit Court of Appeals has held that the language of the statute does not create a cause of action for “hostile work environment” against military service members. Carder v. Continental Airlines, 5th Cir., No. 10-20105, March 22, 2011.
In a case originally filed in 2009, a group of Continental airline pilots alleged various violations of the USERRA, including allegations that they had experienced a hostile work environment on the basis of their military service. The lower court recognized that the USERRA “expressly prevents the denial of benefits of employment to members of the uniformed service by their employers.” In spite of that, the court said that “under a plain language analysis, the scope of this protection does not include safeguarding from a hostile work environment.” The plaintiffs appealed the issue, 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 the USERRA, includes any “advantage, profit, privilege, gain, status, account or interest (including wages or salary. . .)” associated with employment. Based upon 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 Court also cited the legislative history of the USERRA, and the fact that other anti-discrimination statutes, including Title VII and the ADA, specifically protect the “conditions” of an individual’s employment, which has been interpreted by the Supreme Court to include more than the benefits and remuneration associated with employment. The 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 the USERRA.”
This decision does not affect in any way the protections of the USERRA for employees who are members of the military, nor does it preclude those employees from filing claims for constructive discharge, should their employment become so intolerable that they are forced to leave a job. According to the Court, “nothing in this opinion alters the ability of service members to sue under the USERRA for the denial of contractual benefits of their employment on the basis of military status. . . . All that we hold is that service members may not bring a freestanding cause of action for hostile environment against their employers.”
