The Veterans Opportunity to Work (VOW) to Hire Heroes Act, passed with bipartisan support and signed by President Obama, allows military veterans to sue their employers for workplace harassment. The key provisions of the Act seek to reduce unemployment rates for veterans of Iraq and Afghanistan, but the legislation also amends the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to recognize claims of hostile work environment harassment because of the individual’s military status.
By amending USERRA to prohibit discrimination with respect to the "terms, conditions, or privileges of employment," the Act establishes the same standard for hostile environment claims on account of military status as that governing Title VII harassment cases based on sex, race, religion, or ancestry. Like sexual harassment cases, employees who sue will be able to establish harassment claims under USERRA even when they have not suffered a tangible loss of employment or benefits. The same affirmative defenses available to employers will apply.
Prevention Strategies: Employers should have accessible internal complaint and reporting procedures and promptly investigate complaints. Then, where warranted, take immediate and appropriate corrective action to stop hostile behaviors toward military service members and to prevent future harassment. Then, include military status in your harassment prevention training for managers and supervisors.
The USERRA amendments follow the U.S. Supreme Court decision in Staub v. Proctor Hospital, in which the court ruled in favor of an Army reservist who was fired because of anti-military bias. There was evidence that two of his supervisors wanted him fired because his military duties had caused him to be absent from work one weekend a month and a few weeks per year. It was not clear that the human resources officer — who was the person who actually fired Staub based on the supervisors’ write ups — had any negative feelings about Staub due to his military status or even knew about their military bias. Justice Scalia wrote for the unanimous Court: "... if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."
California Military and Veterans Code §394 also prohibits discrimination against members of the armed forces. This statute provides that no person shall discriminate against any enlisted member of the military or naval forces of the United States because of that membership. Section 394 also provides that "no employer or person" shall discharge any person from employment because of the performance of any ordered military duty, or prejudice or harm him/her in any manner in his employment, position, or status by reason of performance of military service or duty. In Haligowski v. Superior Court, the California Court of Appeal was asked to decide whether an employee may hold supervisors personally liable for discrimination under section 394. The Court concluded that, like California FEHA, section 394 allows servicemen and servicewomen to hold their employers, but not individual supervisors, liable for discrimination. This applies to discrimination in all terms and conditions of employment, not just hostile environment harassment.
Prevention Strategies: Make sure that Administrators, Department Heads and front line leaders are informed about the broad protections for active members of the military or those who have records of previous service. Update your policies to address current standards.
This article is an excerpt from the February 2012 edition of Attention to Prevention News published by Eyres Law Group, LLP. It is used with permission under the copyright of Proactive Law Press, LLC.
