Back in August, the United States Court of Appeals for
the Fifth Circuit decided a case and ruled that the Uniformed Services
Employment and Reemployment Rights Act ("USERRA") did not recognize claims of
hostile work environment based on an employee's membership in the National
Guard or Reserves. Well, Congress was obviously not happy with that
opinion nor the reporting and publicity about it - one part of which can be
found in this forum here.
As a refresher, in Carder v. Continental Airlines [an enhanced version of this opinion is available to lexis.com subscribers
/ unenhanced version available from lexisONE Free Case Law] ,
the Fifth Circuit noted that USERRA's definition of the terms "benefit,"
"benefit of employment," and "rights and benefits" did not include the phrase
"the terms, conditions, or privileges of employment." Even though other
legislative acts such as Title VII of the Civil Rights Act of 1964 include this
phrase, which courts have used as a basis to uphold claims of discrimination
caused by a hostile work environment, the court in Carder reasoned that
Congress' decision not to include this phrase in the definition section of
USERRA meant that it did not intend for the Act to include those claims.
Basically, members of our armed services were put in a
position where they often left one hostile work environment on the battlefield,
and then were put right into another in workplaces that were permeated with
discriminatory and hostile ridicule towards them because of their military
Only a few months after Carder, however, Congress
made its desire to squash that notion abundantly clear by passing the VOW to
Hire Heroes Act on November 21, 2011. Among its provisions, the Act
changes USERRA's definition of the terms "benefit," "benefit of employment,"
and "rights and benefits" to include "the terms, conditions, or privileges of
employment." Essentially, this legislation effectively overrules Carder
and changes USERRA to explicitly prohibit employers from creating a hostile
work environment for members of the military services. Now claims of
hostile work environment based on an employee's military status can be
considered under the same standard as similar claims based on the race, sex, or
disability of an employee.
With this change, employers need to be sure that their
equal opportunity policies include prohibitions against discrimination based on
an employee's military status or service requirements. Supervisors and HR
personnel should also be informed of the change so that they comply with this
law. More generally, the VOW to Hire Heroes Act is another reminder that
employers need to exercise caution when making employment decisions or applying
employment practices to members of the nation's military services, because
legal distinctions between that class and other traditionally protected classes
under the law are dwindling rapidly. Seeking competent counsel before
making any decisions in this regard is strongly advised.
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