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Sunday, May 22, 2011

Serving Your Country? Too Bad: Court Says It’s Legal For Your Employer to Mock Your Military Service

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?

3 comments:

  1. my problem is that even though i'm honest about a misdemeanor conviction, which is all they ask for in their application, i know, because i spoke with the company who does their screenings, that they receive from criminal background checks ALL arrests and charges, NOT JUST convictions, and I do have four charges that were eventually dismissed. :( This was seven years ago and I can't win to save my life :(

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  2. Hi Kelly. Depending on your state law, it may not be legal for them to ask about arrests. I posted about this here: http://employeeatty.blogspot.com/search/label/convictions. It's a shame that the concept of innocent until proven guilty seems to be ignored in corporate America. I think you could argue that discrimination based on arrests has a disparate impact on minorities and males.

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  3. "It's a shame that the concept of innocent until proven guilty seems to be ignored in corporate America."

    i think we need to distinguish between how people are treated in the private sector of society and how people are treated by their government.

    how people are treated by government is determined by law. how people are treated by the private sector is determined by personal judgment.

    the determinant of the probability of guilt is different for each.

    another factor in this type of decision making is the factor of competition. every potential employee has competitors for any given position, thus allowing for factors such as this to be taken into consideration and justifiably so, as far as i'm concerned. trust is the key word here.

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