USERRA Expanded to Include Harassment Claims

November 29, 2011

A new law signed by President Obama on November 21 will make it easier for individuals to sue employers for harassment on the basis of their military status. While the thrust of the Veterans Opportunity to Work to Hire Heroes Act is to reduce unemployment rates for veterans of the Iraq and Afghanistan conflicts, it also amends the Uniformed Services Employment and Reemployment Rights Act (USERRA) to specifically recognize claims of harassment (hostile work environment) on account of an individual’s military status.

Prior to the passage of this legislation, courts were mixed on whether claims of harassment under USERRA were viable. However, by amending USERRA to include harassment claims, the Act has established the same standard for harassment claims for military status as those for sex, race, religion and other protected categories under most employment discrimination laws.

What you should do

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The passage of this law, coupled with the Supreme Court’s ruling in Staub v. Proctor Hospital presents two significant protections afforded to those protected by USERRA. (You may recall in Staub that the Supreme Court recognized the Cat’s Paw theory of liability to hold a company liable for discrimination even though the ultimate decision-maker harbored no discriminatory animus against the service member who was terminated.) Accordingly, it would be wise to invest in updating the training of your supervisors and revising any relevant policies to include the protection of those with military and veteran status.