Airline pilots who are members of the U.S. Armed Forces Reserves and the Air National Guard sued after being mocked and ridiculed at work due to their military service. They sued for hostile work environment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA says employers can’t deny any “benefit of employment” due to military service. “Benefit of employment” includes “advantage, profit, privilege, gain, status, account, or interest.”
The court found that USERRA “does not refer to harassment, hostility, insults, derision, derogatory comments, or any similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.” Um, okay. So harassment and insults don’t affect your status at work? Apparently not.
Two circuits have recognized constructive discharge claims under USERRA, but this would require showing that no reasonable person could have tolerated the working conditions. That’s really tough to prove.
This was the first federal appellate decision on this issue, but some federal district courts have held to the contrary, so more courts will be weighing in on this issue.
In the new political climate of employee rights under siege, can we all at least agree that we need to protect those who serve our country? We should not allow employers to make our military members miserable at work due to their service to our country. Will Congress fix this? Or will they continue to allow employees, even those in our military, to be the victims of vicious political maneuvering?