Fired National Guard Member May Pursue USERRA Harassment Claim

May 29, 2008

An Alabama National Guard member fired from his job at an auto assembly plant has no unlawful termination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but may pursue a claim for harassment based on his military status, the U.S. District Court for the Middle District of Alabama ruled May 21 in Dees v. Hyundai Motor Mfg. Ala. LLC, (M.D. Ala., No. 07-306, 5/21/08). Partially denying summary judgment to Hyundai Motor Manufacturing Alabama, the court said USERRA’s provision that a military service member not be denied “any benefit of employment” because of his service is broad enough to include a harassment claim. Citing cases from other courts and the Merit Systems Protection Board, the District Court ruled that USERRA prohibits a hostile work environment based on military service, as analogous acts of sexual or racial harassment are prohibited by Title VII of the 1964 Civil Rights Act. Judge Myron H. Thompson focused on the fact that “USERRA is intended to be construed broadly for the benefit of returning veterans,” and wrote that the Court’s conclusion “is consistent with the purpose of USERRA–namely, to encourage individuals to join the military by assuring them that their jobs are not at risk. An assurance that employees cannot be fired on account of their military service is meaningless without assurance that the work environment will not be so intolerable that they will feel forced to quit.”

In ruling that a hostile environment harassment claim exists under USERRA, the court cited Petersen v. Dep’t of Interior, 71 M.S.P.R. 227 (1996), a Merit Systems Protection Board ruling that a federal employee could proceed with a harassment claim under the act. The board in Petersen reasoned that although a hostile environment claim does not clearly fall within the statutory term “benefit of employment,” an “expansive interpretation” of USERRA, “as intended by Congress,” permits the conclusion that freedom from harassment is a “benefit.” The board’s decision is bolstered by courts’ consistent holdings that other federal discrimination statutes, including the Americans with Disabilities Act, the Rehabilitation Act, and Title IX of the Education Amendments of 1972, prohibit harassment even though they lack specific anti-harassment language, the court said.

This case represents an interesting development in employment law. Ever since the Supreme Court’s recent expansion of the permissive scope retaliation claims in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (permitting retaliation claims for any “materially adverse” employment action that “might have dissuaded a reasonable worker” from complaining about discrimination), the federal courts seem to be telling employers and employees that it is no longer essential to prove a tangible showing of harm (i.e., an adverse employment action) to state a claim that has teeth under anti-discrimination laws. This pattern is particularly evident in light of the two very recent Supreme Court opinions expanding the scope of retaliation where the statutory text does not expressly permit such a claim. See CBOCS West Inc. v. Humphries, No. 06-1431 (U.S. May 27, 2008) (finding claims of retaliation are encompassed by 42 U.S.C. ยง 1981); Gomez-Perez v. Potter, 06-1321 (U.S. May 27, 2008) (holding that the ADEA prohibits retaliation against federal employees for complaining of age discrimination, even though Congress included a specific provision prohibiting retaliation against employees in private sector, but omitted a similar provision for federal employees).