Labor: Employees can now claim hostile work environment based on veteran status

What employers need to know to avoid lawsuits

Continuing the federal government’s recent trend of enacting laws, regulations and administrative processes that create or expand employees’ rights, on Nov. 21, 2011, President Obama signed into law the VOW to Hire Heroes Act of 2011. While the new law includes several provisions, the most controversial and legally noteworthy is a provision that amends and expands the protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Among other things, the provision created a new cause of action for veteran employees: a claim for hostile work environment based on veteran status. That part of the new law makes it easier for employees (including former, part-time and probationary employees) to sue their employers for harassment related to their military status.

The new law was passed with bipartisan support, with the intent of helping unemployed veterans get back into the workforce. That goal, however, has taken a back seat, in terms of publicity and attention, to the part of the law that broadens the scope of USERRA to include a claim for hostile work environment. Previously, it had been unclear whether USERRA provided a cause of action for claims of harassment and hostile work environment based on military status.

The Supreme Court had not addressed the issue, most federal 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 5th 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 employment benefits.

Less than nine months later, Congress amended USERRA, adding the same “terms and conditions” language found in Title VII, and legislatively undoing what the appellate court in Carder had judicially done.

Plaintiffs who file suit under this new provision may be entitled to lost wages and benefits, as well as liquidated damages, in an amount equal to those damages, for willful violations. It is not clear whether successful USERRA claimants will be entitled to the additional remedies provided under Title VII, such as injunctive relief, damages for emotional distress, attorneys’ fees and costs, punitive damages and front pay.

With the recent draw-down of troops in Iraq and Afghanistan, more and more veterans are returning to the U.S. and entering, or re-entering, the workforce. Therefore, the expansion of USERRA’s protection to include hostile work environment makes employer compliance more important than ever. Employers should consider training all supervisors regarding USERRA compliance.

Additionally, employers should review and revise, if necessary, their policies and procedures regarding anti-harassment, hostile work environment and equal opportunities to include military and veteran status as a protected class. Finally, employers should develop and provide reporting procedures for USERRA-covered workplace complaints and quickly investigate any complaints that do arise.

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Andrew Tanick

Andy Tanick is a partner at national labor and employment firm Ford & Harrison LLP. Andy has over 20 years of experience handling employment cases...

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