On March 22, 2011, the U.S. Court of Appeals for the Fifth Circuit issued its decision in Carder v. Continental Airlines, Inc., ruling that there is no cause of action for hostile work environment or harassment under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which prohibits discrimination against employees who serve in the uniformed services.  The Fifth Circuit is the first court of appeals to expressly address this issue.

Facts

Continental was sued by a group of its pilots who were also members of the Air National Guard and the Reserves. The pilots alleged that the airline had violated USERRA by subjecting them to a hostile work environment and harassment because of their military service obligations. For example, they complained that Continental managers made derisive comments to them such as:

• "If you guys take more than three or four days a month in military leave, you’re just taking advantage of the system."
   
• “I used to be guard guy, so I know the scams you guys are running."
   
• It’s getting really difficult to hire you military guys because you’re taking so much military leave."
   
• “You need to choose between CAL and the Navy."

The Fifth Circuit:

• Refused to recognize a hostile work environment or harassment claim under USERRA because USERRA does not expressly provide for such claims and the language in USERRA is very different from that in other non-discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans With Disabilities Act (ADA), where hostile work environment and harassment claims have been recognized.
   
• Reasoned that Title VII and the ADA prohibit discrimination against historically disadvantaged minorities with respect to the "terms, conditions, or privileges of employment." In contrast, USERRA does not speak in terms of "conditions" of employment, but uses the more narrow language “any benefit of employment."  Also, there is no indication that Congress considered members of the uniformed services to be a historically disadvantaged minority that needed special protection.
   
• Concluded that if a service member suffers harassment to such a degree that it makes the workplace intolerable or otherwise adversely affects a benefit of employment, then the service member will have a claim against his/her employer for constructive discharge or other claim based on discrimination. Therefore, recognition of a hostile work environment or harassment claim under USERRA is unnecessary. 

What This Means for Employers

• The Fifth Circuit’s decision only has controlling effect in the states within the court’s jurisdiction – Texas, Louisiana, and Mississippi.  Federal district courts in other states, e.g., Alabama and Tennessee, contrary to the Fifth Circuit, have recognized hostile work environment claims under USERRA. These lower court decisions will continue to govern in that state until the appellate court with jurisdiction over the state or the U.S. Supreme Court issues a different ruling. Employers should be familiar with the law in their own state on this issue.
   
• The Fifth Circuit’s ruling does not mean that employers have a free pass to engage in harassment of employees who serve in the military or to ignore complaints by employees of harassment because of their military service. Rather, employers must be as vigilant in preventing harassment against service members and as quick in addressing claims of harassment by service members as they are with respect to claims of harassment by female, minority, disabled or other historically disadvantaged minority employees.
   
• Many employers include military service or a generic assumption of all "prohibited" factors into their harassment policies. As a result, the employer’s existing policy may continue to impose some obligations on the employers and its employees or provide grounds for discipline, unless the policy is amended by the employer.
   
• The failure of an employer to prevent or promptly address hostile work environment or harassment complaints by a service member could result in employer liability for constructive discharge or other claim of discrimination under USERRA.