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A Modest Proposal for Veteran’s Day

charlotte-fishmanWith Veteran’s Day fast upon us, the airwaves are awash in the rhetoric of appreciation for the sacrifice of military servicemen and women, but the Supreme Court seems not to have gotten the message.  On October 2, the Court denied review of an astonishingly cold-blooded Fifth Circuit decision holding that a federal law prohibiting employment discrimination against military service members does not protect them from harassment on the job.

In Carder v. Continental Airlines 636 F.3d 172 (2011), a cringe-inducing opinion worthy of a Doonesbury cartoon, the Fifth Circuit refused to allow a workplace harassment claim brought by Continental Airlines pilots who are members of the United States Armed Forces Reserves and the Air National Guard to go forward.  In a class action complaint that includes multiple violations of the Uniformed Services Employment, Reemployment and Rights Act [USERRA], the pilots alleged a continuous pattern of insult and derisive comments directed at their military service, excessive scrutiny of off-duty military activity, interference with military leave, threats of termination and denial of flight time affecting their retirement benefits.

Congress enacted USERRA for three purposes:  (1) to encourage noncareer service in the uniformed services; (2) to minimize disruption to the lives of servicemembers, employers, fellow employees and communities; and (3) to prohibit discrimination against employees because of their service.  It doesn’t take a rocket scientist to recognize that  fulfillment of  the third purpose is critical to success of the first.  To insure robust enforcement, Congress mandated that the statute be “broadly construed” for the benefit of service members.

USERRA prohibits discrimination using language that is similar, but not identical to Title VII of the historic Civil Rights Act of 1964.  Title VII prohibits discrimination with respect to the “terms, conditions, or privileges of employment, “ while USERRA prohibits discrimination with respect to “initial employment, reemployment, retention in employment, promotion, or any benefit of employment.”   Congress defined “benefit of employment” as “any advantage, profit, privilege, gain, status, account, or interest” arising from the employment relationship.

From 1964 to the present, federal employment discrimination law has evolved and expanded in scope as Congress added new protected categories,  and the federal courts ruled that statutes prohibiting discrimination encompass harassment and hostile work environment claims.  In Meritor Savings Bank v. Vinson, 477 U.S. 37 (1986) the Supreme Court ruled that sexual harassment violates Title VII’s prohibition against sex discrimination, and in Harris v. Forklift Systems 510 U.S. 17 (1993) the Court announced that  “hostile work environment” harassment also violates Title VII, provided the conduct  is “severe or pervasive” enough to create an abusive work environment.

In a perfect world, USERRA’s plain language and statutory purpose, coupled with Supreme Court precedent and common sense would have led the Fifth Circuit to afford military service members the same protection against harassment enjoyed by other protected groups. Instead, the Court unaccountably seized on Congress’ failure to use the magic words “terms, conditions, and privileges of employment” as proof that it intended USERRA to provide a “more circumscribed set of actionable rights.” Having convinced itself (in the absence of any data) that harassment of military service members is not a widespread social problem in need of a remedy, the Court dismissed the pilots’ hostile environment claims, leaving them to “suck it up.”

In making an assumption that service members are not subject to the “invidious” and “irrational” harassment experienced by traditionally disadvantaged minorities,  the Court utterly failed to take into account the realities of our post 9/11 world.  In recent years, “citizen soldiers” have had to endure lengthier and more frequent deployments than at any other time in our nation’s history.

The trigger for employer harassment is, ironically, the very thing that society professes to value most – a service member’s willingness to disrupt his or her career to serve the nation.  Deployments  not only create pain and suffering for service members and their families, they also disrupt work schedules and cause financial hardship for employers. The greater the disruption and expense, the greater the employer’s “rational” incentive to get rid of employees with military service obligations.

Without statutory protection against harassment, service members are at the mercy of supervisors who foment resentment among co-workers or engage in disciplinary harassment  in an attempt to avoid the “shared sacrifice” mandated by USERRA.  Since reservists are typically locked into multi-year enlistment contracts, separation from the military to avoid harassment is not an option.  In an economy in which jobs are scarce and unemployment high, quitting when the harassment becomes unendurable and suing for constructive discharge – the Court’s proposed “solution” – isn’t viable either.

Congress’ purpose would have been better served if the Supreme Court had summarily reversed the Fifth Circuit or agreed to hear the case and issue a definitive ruling that USERRA prohibits workplace harassment. Unfortunately, waiting for another case to wend its way to the Supreme Court can take years.  With tens of thousands of deployed servicemen and women poised to return by year’s end, Congressional action is needed to secure their right to a harassment-free workplace now.

Happily, there is something we can do. As every 8th grader knows, our democracy is protected by a system of checks and balances.  When the Supreme Court fails to protect important rights, citizens can petition Congress to fill the gap.  Why not honor Veteran’s Day by asking your Senator or Representative to amend USERRA to clarify that a harassment-free workplace is a “benefit” of employment?  As an expression of gratitude, it sure beats  “Thanks for your service, but it’s hell on our bottom line.”

About the Author: Charlotte Fishman is a San Francisco attorney, and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace.

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