DOES USERRA PROTECT AGAINST A HOSTILE WORK ENVIRONMENT?
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 employment.”
This definition took center stage in the Carder opinion.
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.