Fifth Circuit's Decision Finding USERRA Harassment Claims Not Cognizable Mmay Be Overruled by the Congress

In Carder v. Continental Airlines, 636 F.3d 172 (5th Cir. 2011), petition for cert. denied 181 L. Ed. 2d 235 (Oct. 3, 2011), the Fifth Circuit held that USERRA does not create a cause of action for hostile work environment.  The Court’s decision, authored by Circuit Judge W. Eugene Davis, relied on the current language of USERRA, which does not contain the phrase “the terms, conditions, or privileges of employment” found in Title VII, which the Supreme Court heavily relied upon to find a cause of action for harassment.  Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 63-66 (1986).  In contrast, USERRA, in current § 4311(a) states that a protected person “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that [protected status].” (emphasis supplied).

Presumably, both houses will agree shortly on legislation containing a Carder-override.  Given that it is characterized as a clarification, and thus potentially retroactive, employers should proceed henceforth, if they have not already, to conduct their business as though the law prohibits harassment of those protected by the Uniformed Services Employment and Reemployment Rights Act. 

On October 12, 2011, the U.S. House of Representatives passed H.R. 2433, the “Veteran Opportunity to Work Act”, which contains § 401, which would effectively overrule the Carder decision.  H.R. 2433, 112th Cong. (2011). Section 251 states as follows:

“Section 4303(2) of title 38, United States Code, is amended by inserting ‘the terms, conditions, or privileges of employment, including’ after ‘means’.”

The House indicated that the legislation is intended to “clarify” USERRA.  Thus, it is already being argued that the amendment would be retroactive.  See H.R. 2433, Section 1 “Short Title; Table of Contents”.  

On November 11, 2011, the Senate passed similar legislation in the form of section 251 of the VOW to Hire Heroes Act, S. 951, which was combined with H.R. 2433 and inserted as an amendment replacing the entirety of H.R. 674. See S. Res. 951, 112th Cong. (2011); H.R. 674, 112th Cong. (2011).

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