Fifth Circuit: Hostile Work Environment analysis does not apply under USERRA

According to the Fifth Circuit Court of Appeals, an employer may not be subject to liability for a hostile work environment under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  Carder v. Continental Airlines, No. 10-20105 (5th Cir. Mar. 22, 2011). The Fifth Circuit has jurisdiction over Louisiana, Mississippi and Texas.

Reserve and National Guard airline pilots pursued a class action against Continental Airlines, alleging that management had “repeatedly chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations.” The pilots claimed comments like “Continental is your big boss, the Guard is your little boss” and “you need to choose between [Continental] and the Navy” had been directed at them by management. The pilots further alleged that Continental had placed “onerous restrictions” on military leave and these restrictions affected the pilots’ “opportunity to log flight hours toward participation in a retirement fund.”

The Fifth Circuit agreed with the trial court in its dismissal of the pilots’ hostile environment claim, noting differences between the statutory language of USERRA (prohibiting the denial of benefits) and Title VII of the Civil Rights Act (prohibiting discrimination with respect to “conditions” of employment, which in turn permits claims for hostile environment).

The Court concluded employees cannot assert a pure hostile environment claim under USERRA, but made to important additional points. First, a number of courts, including the Eighth and Ninth Circuits, have recognized constructive discharge claims under USERRA. A constructive discharge claim might arise where an employee could show his working conditions became “‘so intolerable that a reasonable person would have felt compelled to resign.’” Second, the term “benefits of employment” under USERRA is broad and the issues raised by the pilots might still permit recovery if they could show they lost such benefits because of Continental’s actions.

In light of this decision, employers should make sure that management understands and respects USERRA, and that all complaints receive prompt and meaningful attention.