Thursday, October 8, 2015

A lesson on USERRA and military-status discrimination

The Uniformed Services Employment and Reemployment Rights Act guarantees servicemembers the right to be free from discrimination in hiring, re-hiring or reinstatement, retention, promotion, or any benefit of employment on the basis of that membership, application for membership, performance of service, application for service, or obligation in the armed forces.

David Eichaker worked as a police officer for the Village of Vicksburg while also serving in the military. Eichaker claimed that the Village discriminated against him because of his military affiliation, including, but not limited to, passing him over for a promotion to police chief in favor of a co-worker who did not serve in the military. Eichaker claimed that various Village officials made the follow statements in support of their decision not to promote him:

  • He was “focusing on his military career.”
  • “It would be hard to have a Police Chief if he was called away for [military] duty, or … deployed.”
Based on those statements, it was not difficult for the court of appeals to conclude that the district court had mistakenly granted summary judgment to the employer:
All of this testimony—which the district court appeared to overlook in granting summary judgment—was relevant to Eichaker’s claim. An employer’s concern that an employee is taking too much time off for military service is direct evidence of anti-military animus. So too is a supervisor’s statement that he does not want an employee volunteering for extra military duty when needed at work. This is true even when the comments are made at a time or by a person removed from the adverse employment decision. But there is no such remoteness here: Crawford explained his decision to demote Eichaker by referencing Eichaker’s military leaves of absence. That is direct evidence of antimilitary animus. Thus, Eichaker presented evidence that would allow a reasonable jury to find that his military service was a motivating factor in Crawford’s decision to deny him a promotion.
Employers, those that serve our country do so at great sacrifice, to their lives, families, and careers. Federal judges, many of whom served in the military, do not look kindly when employers trample that sacrifice through acts of discrimination. USERRA grants servicemembers anti-discrimination rights. The law treats those rights seriously as all other anti-discrimination rights—you should too.