Members of the armed forces are generally protected from discrimination in their employment by civilian employers under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). In addition to individual state laws that may protect service members, USERRA makes it illegal for an employer to deny a “benefit of employment” to a member of the armed forces based on such membership or the employee’s performance of service. Its primary purpose being to encourage people to join the military reserves, USERRA claims have increased in frequency during the past decade as reservists have been called to long stints of active duty due to U.S. military commitments in Afghanistan and Iraq.
District courts and the federal Merit Systems Protection Board had concluded that employees could bring claims under USERRA based on allegations that employers had created a “hostile work environment” for employees who are members of the armed services — i.e., that claims could be brought where employers allowed harassment of or derogatory comments to be made to employees with respect to being a member of the military or due to their need for time away from work to perform military service. No circuit court had directly addressed the question of whether such conduct violated USERRA, however, until the Fifth Circuit’s March 22, 2011 decision in Carder v. Continental Airlines, Inc., 636 F.3d 172 (5th Cir. 2011) (Carder). In Carder, the Fifth Circuit held that employees cannot bring claims under USERRA based on allegations that an employer has created a hostile work environment through harassing, discriminatory, or degrading comments or conduct related to or arising out of the employees’ military service.
The pilot claimants in Carder had alleged that the management of their employer, Continental Airlines, had placed “onerous restrictions” on taking military leave and made derisive and derogatory comments to the pilots regarding their military service. The Fifth Circuit affirmed the dismissal of a claim that this conduct created a hostile work environment prohibited by USERRA. The Fifth Circuit pointed to the fact that the language of USERRA did not expressly refer to protection from “harassment, hostility, insults, derision, derogatory comments or any other similar words.” Further, the court relied upon the fact that in choosing the language for USERRA, Congress used the term “benefits of employment” rather than the phrase “terms, conditions, or privileges of employment” that were used in both Title VII and the ADA and previously used by the U.S. Supreme Court for deciding that those statutes allowed hostile work environment claims. The Fifth Circuit in Carder thus concluded that USERRA’s protection of benefits of employment is narrower than the protection afforded by Title VII and the ADA, and did not allow for claims that an employer had created a hostile work environment based on service in the military.
The Fifth Circuit did leave open the possibility, however, that such conduct could form the basis of a constructive discharge claim under USERRA if it created working conditions that were so intolerable that a reasonable person would feel compelled to resign, acknowledging that such claims had been recognized by other courts. The court stated that its decision was meant to bar only actions for the “lesser levels of harassment that usually form the basis for hostile work environment claims.”