The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employment discrimination and retaliation based on an employee’s military status or obligations. If an individual’s military status or their performance of military obligations motivates an employer’s adverse decision or action, unlawful discrimination or retaliation has occurred. As with other employment laws, USERRA claims turn on the employer’s intent or motivation. A business may defeat a USERRA discrimination lawsuit by demonstrating it would have made the same employment decision regardless of the individual’s military status or obligations.
Anti-military accusations
Kenneth Porter was a U.S. Navy veteran and member of the Navy Reserve who worked as a pilot for Trans State Airlines (TSA) for 14 years. During his employment, Porter was absent multiple times for Naval Reserve assignments, including a seven-month deployment and a three-year assignment at the Pentagon. Without exception, TSA approved all Porter’s requests for military leave. Nevertheless, Porter sued TSA claiming, among other things, that he was denied a number of promotions due to his absences and the employer’s anti-military animus.
During the course of the litigation, it was shown that Porter’s accusation of TSA’s anti-military animus lacked any substance. While he was not awarded every advancement he wanted, he received a number of promotions, some of which occurred soon after returning from a military assignment or deployment. Porter tried to bolster his discrimination lawsuit by complaining about a supervisor’s statement that Porter performed “a lot of military duty.” However, this isolated remark was insignificant. In fact, the supervisor who made the statement was also a military reservist and had missed work while deployed for Operation Desert Shield, Operation Desert Storm and Operation Iraqi Freedom. Porter’s other attempts to prove an anti-military attitude on the part of TSA were similarly found to be conclusory and ineffective.
The employer’s pro-military history
The final nail in the coffin for Porter’s USERRA lawsuit was TSA’s track record when it came to employees with military backgrounds. TSA had a consistent history of hiring employees with military obligations and accommodating their military absences. The company put in place its “Military Rotor Program,” which assisted military pilots in transitioning to civilian employment in the commercial airlines industry. Over the years, TSA had won awards for its support of service members – a fact the company proudly noted in its employee handbook and website. TSA consistently took “a decidedly pro-military stance.” Unsurprisingly, Porter’s lawsuit against TSA was dismissed, and judgment was entered for the employer.
Stay on watch
Growing numbers of employees are members of military reserve units, and military assignment and deployment obligations seem to be on the increase. Be sensitive to those employees’ leave and re-employment rights and be able to show you have accommodated those absences in the past. Finally, be sure to include a statement in your employee handbook that affirms your company’s commitment to supporting military-affiliated employees and their rights under USERRA.
- Porter v. Trans State Holdings, Inc., 1:23-cv-00263-SBP (11/7/24)
