When Congress passed the VOW to Hire Heroes Act of 2011 in November, most of the focus was on tax credits extended to those who hire veterans. But the bill also included a lesser-known provision that expands a veteran's ability to sue for discrimination.
That provision amended the Uniformed Services Employment and Reemployment Rights Act (USERRA) to include a claim for hostile work environment based on veteran status. Until now, the availability of such a claim was unclear.
Federal courts, including a number of circuit courts, were divided on the question, explains Inside Counsel. USERRA only prohibited the denial of "initial employment, reemployment, retention in employment, promotion, or any benefit of employment" on the basis of an employee's prior military service.
Though some courts found a hostile work environment claim in this language, others did not. The Fifth Circuit's Carder v. Continental Airlines is the most notable of these cases. Because the definition of "benefit of employment" did not include harassment, hostility or other "terms and conditions," the court found no such claim.
Congress reversed this interpretation in November, prohibiting discrimination in the "terms and conditions" of employment. USERRA now imposes the same standards as found in Title VII and other employment discrimination laws.
As a result, it may be time to update your discrimination and harassment guidelines. It might also be a good idea to send a memo to employees. A USERRA hostile work environment claim can cost a pretty penny -- remedies include lost wages, emotional distress, attorneys' fees and punitive damages.
- Uniformed Services Employment and Reemployment Rights Act (USERRA) Information (Department of Labor)
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