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Fifth Circuit Says No Claim for Harassment Under USERRA

    Client Alerts
  • April 01, 2011

The Uniformed Services Employment and Reemployment Rights Act provides job-protected leaves for employees who serve in the armed forces, and prohibits employers from interfering with military service or retaliating against employees who serve in the Reserves or National Guard. Last week, the Fifth Circuit Court of Appeals concluded that USERRA does not include a remedy for hostile environment harassment based on an employee's military service.

In Carder v. Continental Airlines, Inc., the plaintiffs were pilots who alleged that their supervisors at Continental harassed them by repeatedly making negative comments regarding their military service, accusing them of taking advantage of USERRA to avoid work for Continental. Continental sought dismissal of the harassment portion of their claim on the basis that USERRA only prohibits employers from interfering with the granting of some employment benefit.

The Fifth Circuit agreed, concluding that USERRA's statutory language does not provide relief for hostile environment harassment. Unlike Title VII or the ADA, USERRA does not make reference to employment conditions. Absent clear legislative intent to include a harassment remedy, USERRA claims are limited to situations where the employee suffers some tangible loss of employment, salary or benefit.

This case is the first appellate decision on this topic. In most situations, USERRA claims involve allegation of loss of a specific benefit of employment. However, this precedent may help employers eliminate other claims that accompany the plaintiff's main complaint.