Fifth Circuit Holds USERRA Does Not Provide Basis For Hostile Work Environment Claim

Fifth Circuit Holds USERRA Does Not Provide Basis For Hostile Work Environment Claim

On March 22, 2011, the United States Circuit Court of Appeals for the Fifth Circuit held in Carder v. Continental Airlines, Inc., that the Uniformed Services Employment and Reemployment Rights Act (“USERRA” or “Act”) does not provide for a cause of action for hostile work environment. The issue was one of first impression for the federal appellate courts.

In Carder, four airline pilots who were members of the United States Armed Forces Reserves and Air National Guard sued their employer, Continental Airlines, on behalf of themselves and other similarly situated employees, alleging among other things, that Continental created a hostile work environment in violation of USERRA by restricting the plaintiffs’ ability to take military leave and by making derisive and derogatory comments about the plaintiffs’ military service. Continental moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that USERRA neither prohibits harassment of military members nor otherwise contemplates a hostile work environment claim. The district court agreed and dismissed the hostile work environment claim. On appeal, the Fifth Circuit affirmed.

USERRA was enacted in 1994 to prohibit civilian employers from discriminating against their employees because of their military service. Specifically, the Act provides, in pertinent part, that service members of the uniformed services shall not be denied “initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership . . ..” The Act 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 the employment.

The specific question before the Fifth Circuit, therefore, was whether USERRA’s prohibition of the denial of “benefits of employment” based on an employee’s membership in the uniformed services gives rise to a hostile work environment claim. Unable to resolve the issue by examining the statute’s plain language and legislative history, the Fifth Circuit turned to case law analyzing hostile work environment claims under other anti-discrimination statutes. In so doing, the Fifth Circuit noted that in originally permitting a plaintiff to pursue a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”) in Meritor Savings Bank v. Vinson, the United States Supreme Court relied heavily on Title VII’s language prohibiting discrimination with respect to the “terms, conditions, or privileges of employment.” According to the Fifth Circuit, “the Meritor opinion makes clear that it is the word ‘conditions,’ in particular, that the [Supreme] Court relied on in inferring a claim for hostile work environment under Title VII.” Indeed, the Fifth Circuit noted that it previously had relied heavily on Meritor in inferring a cause of action for hostile work environment under the Americans with Disabilities Act (“ADA”), which contains the same language.

Because USERRA was passed after the Supreme Court’s decision in Meritor, and Congress chose not to include in USERRA the phrase “”terms, conditions, or privileges of employment language” or similar wording as it had in the ADA, the Court reasoned that Congress “intended to create a somewhat more circumscribed set of actionable rights under USERRA.” Accordingly, it declined to infer a cause of action for hostile work environment under the Act.

The Fifth Circuit’s decision in Carder clearly limits potential liability for employers under USERRA. Nevertheless, this case highlights the need to continue to train supervisors regarding the dangers of making statements regarding, or decisions based on, employees’ military service or membership in armed services. Indeed, as the Fifth Circuit acknowledged in Carder, a hostile work environment could potentially give rise to a viable constructive discharge claim under USERRA. Thus, it is important for employers not only to train their supervisors regarding the protections afforded by USERRA, but also to provide employees with means by which to report any complaints of discrimination based on their membership in the uniformed services and to investigate fully and promptly any such complaint.