In an issue of first impression, the U.S. Court of Appeals for the Fifth Circuit (the federal appellate court hearing cases from Texas), held that the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides no cause of action for a hostile work environment that is created because of a service member’s military service. 

The Plaintiffs, in Carder v. Continental Airlines, Inc.,  alleged that Continental created a hostile work environment through "harassing, discriminatory, and degrading comments and conduct relating to and arising out of" their military service through a continuous pattern of harassment.  They further alleged that "Continental has . . .  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."  Examples cited in the suit included: 

  • placing onerous restrictions on taking military leave and arbitrarily attempting to cancel military leave;
  • making derisive and derogatory comments to pilots about their military service such as "If you guys take more than three or four days a month in military leave, you’re just taking advantage of the system.";  "I used to a guard guy, so I know the scams you guys are running."; "Your commander can wait.  You work full time for me.  Part-time for him.  I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines."; Continental is your big boss, the Guard is your little boss."; "It’s getting really difficult to hire you military guys because you’re taking so much military leave."; "You need to choose between CAL and the Navy."

The Court affirmed the trial court’s dismissal of the hostile work environment claim concluding that Congress never intended to create such a claim. The Court’s rationale was premised on two important points.  First, unlike Title VII, which prohibits discrimination in the "terms, conditions or privileges of employment", USERRA merely covers "benefits of employment".  The Court reasoned that the use of different phrases expressed Congressional intent to cover a narrower set of circumstances that would give rise to a claim than Title VII afforded.  Second, the Court observed  that the Department of Labor had promulgated regulations interpreting USERRA and included no reference to harassment or hostile work environment thereby providing further support that it should not be interpreted as providing such a cause of action.

For these reasons, the Court held that USERRA affords no cause of action for discrimination or harassment based on a hostile work environment theory. You can access the full opinion in Carder v. Continental Airlines, Inc. here.