On March 1, 2011, the United States Supreme Court held in Staub v. Proctor Hospital that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

USERRA makes it unlawful for an employer to deny “initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer” on the basis of a person’s membership or obligation to perform service in a uniformed service. 38 U.S.C. §4311(a). USERRA further provides that an employer shall be considered to have engaged in prohibited conduct “if the person’s membership…is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” 38 U.S.C. §4311(c).