by Vanessa L. Goddard
Several months ago, the Fifth Circuit Court of Appeals
(which covers Louisiana, Mississippi, and Texas) issued an extremely
interesting opinion and, in the process, became the first federal appellate
court to definitively address whether the Uniformed Services Employment and
Reemployment Rights Act ("USERRA") created a claim for a hostile work
environment based upon membership in the uniformed services.
In Carder v. Continental Airlines, Inc., a class of
plaintiffs alleged a pattern of harassment by their employer, including
derisive comments and onerous restrictions on taking military leave.
While some of the claims survived the airline's motion to dismiss, the Court
undertook an extensive analysis of whether USERRA prohibits an employer from
creating a hostile work environment.
For those who still don't know, USERRA prohibits
employers from discriminating and retaliating against members and applicants of
the uniformed services by denying them initial employment, reemployment,
retention in employment, promotion, or any benefit of employment.
The statute defines "benefit of employment" as "any advantage, profit,
privilege, gain, status, account, or interest (including wages or salary for
work performed) that accrues by reason of an employment contract or agreement
or an employer policy, plan, or practice and includes rights and benefits under
a pension plan, a health plan, an employee stock ownership plan, insurance
coverage and awards, bonuses, severance pay, supplemental unemployment
benefits, vacations, and the opportunity to select work hours or location of
This definition took center stage in the Carder
In reaching its decision that USERRA does not create a
cause of action for hostile work environment, the Fifth Circuit noted that the
clear language of the statute does not refer to harassment or hostility.
Moreover, according to the Court, federal statutes that have been found to
create hostile work environment claims, like Title VII and the ADA, use the
phrase "terms, conditions, or privileges of employment", which Congress chose
not to use in USERRA. Curiously, the Fifth Circuit noted that a claim for
constructive discharge could be brought under USERRA should the covered
employee feel harassed to the point of quitting.
This decision was somewhat surprising, since federal
courts all over the country have taken an increasingly expansive view of
statutes designed to eradicate disparate treatment of all types in the
workplace lately. USERRA is, of course, one of those statutes, and it
uses broad language to protect against threats to "any benefit of employment"
belonging to a member of the armed services.
In Alabama, Illinois, and Kentucky, for example, federal
district courts have reached a different conclusion than the Fifth Circuit, and
have relied upon a far more expansive interpretation of USERRA in doing
so. These courts have found that the absence of a hostile work
environment is a "benefit" of employment. Also noting that other
non-discrimination statutes have been found generally to include harassment
claims, these courts have stated their opinion that USERRA's non-discrimination
provisions should operate similarly. Making the Fifth Circuit's
distinction even more puzzling is the fact that, while it felt harassment on the
job standing alone wasn't good enough because it wasn't the equivalent of being
discriminated against by definition, it felt it would have been good
enough if the plaintiffs felt compelled to quit over it.
Until this issue is addressed by the United States Supreme
Court or Congress, it is difficult to predict the result courts in this region
will reach. It certainly will be interesting to see how any similar
issue plays out locally, however.
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