Legal Alert: USERRA Expanded to Include Hostile Work Environment Claims

by FordHarrison
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On November 21, 2011, President Obama signed into law the VOW to Hire Heroes Act of 2011. The new law contains three main provisions: (1) amends and expands the protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA); (2) amends the Internal Revenue Code to provide certain tax credits to tax-exempt companies that hire unemployed veterans; and (3) creates new and expanded education, training, and transition programs for veterans within the federal Departments of Labor and Veterans Affairs. The first provisions of the new law (amendment to USERRA) may make it easier for employees (including former, part-time and probationary employees) to sue their employers for discrimination related to their military status.

The new law was passed with bipartisan support and is intended to reduce unemployment rates for veterans of the Iraq and Afghanistan wars by helping hundreds of thousands of unemployed veterans get back into the workforce. However, the provision of VOW which broadens the scope of USERRA to include a claim for hostile work environment is garnering a lot of attention. Previously it was unclear whether USERRA provided coverage for claims of harassment and hostile work environment based on military status. Until March 22, 2011, some federal courts were reluctant to address hostile work environment claims under USERRA. The Supreme Court had not addressed the issue, most district courts were divided on the question and only a few circuit courts assumed that hostile work environment was a legitimate claim under USERRA. Then, on March 22, 2011, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Carder v. Continental Airlines, which held that USERRA, unlike Title VII, did not provide for a hostile work environment claim because the statute did not include the phrase "the terms, conditions, or privileges of employment" in its definition of benefits of employment. Less than nine months later, Congress amended USERRA, adding the same language used in Title VII, expressing its disagreement with what the Fifth Circuit did in the Carder case.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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