FIfth Circuit Rejects USERRA Hostile Work Environmennt Claim

Several Air Force and Air National Guard Reserve pilots for Continental Airlines filed a lawsuit under USERRA (Uniformed Services Employment and Reemployment Rights Act) alleging that comments made by their managers created a hostile work environment. The comments, the court decision said, were:

“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 be 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."

 Assuming these comments were made, the court nevertheless held that USERRA did not provide the pilots with any relief.  Discrimination under USERRA, the court reasoned, includes

the denial of any “benefit of employment.” The language . . . defining the word “benefit” and the phrase “benefit of employment”  includes the long list of terms “advantage, profit, privilege, gain, status, account, or interest.” But [USERRA] does not refer to harassment, hostility, insults, derision, derogatory comments, or any other similar words.

The decision is precedent for Texas, Louisiana and Mississippi.  There is contract precedent so Tennessee employers should exercise caution in relying upon it.  It also serves as a reminder that employers should not make tolerate negative comments about military service, or the disruption absences caused by military service.

Carder v. Continental Airlines,  (5th Cir. 3/22/2011).