The United States Supreme Court has declined to review the Fifth Circuit decision Carder v. Continental Airlines, Inc. that decided, as a matter of first impression, that the Uniformed Services Employment and Reemployment Rights Act ("USERRA") does not create a hostile work environment cause of action.
For now, that means that employers in the Fifth Circuit will only have to make sure that they are complying with USERRA’s benefits continuation, seniority rights, and reemployment provisions. This is likely not the end of the story, however.
As the Carder case noted, several circuits have assumed, without deciding, that a hostile work environment claim could be raised under USERRA. Those cases are exceptionally limited, but do exist. For example, courts in the First, Ninth and Eleventh Circuits all assumed that such a claim could be raised but declined to decide the issue. In Vickers v. City of Memphis, the District Court for the Western District of Tennessee did affirmatively decide that a hostile work environment claim could be raised. It will be interesting to see whether any other courts in the Sixth Circuit decide the issue the same way.
While the issue remains undecided, the safer course of action is to treat returning service members the same as any other person who has engaged in protected activity (reporting discrimination, requesting family leave, etc.) — which is to say — carefully.