With the United States’ current War on Terror, many military personnel employed in other occupations are called to active duty. Are employers required to re-employ men and women serving in the military after they return from active duty? Can an employer inquire as to whether an employee or potential employee may be subject to active military duty in the future?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employment discrimination against members of the military based on the member’s military service. An employer may not deny re-employment, promotion or employment benefits to an employee if that employee is called to active duty. Members of the military are a protected class, so employers cannot fire, demote or deny benefits to a military employee based solely on the employee’s service and duty to the military.
An Oregon jury awarded nearly $1 million in damages to a National Guardsman who was demoted and fired by Target after returning from active military duty (Patton v. Target Corp.). James Patton, a graduate of West Point, served six years in the military before retiring in 2001. In 2000, he began working for Target’s distribution center in Oregon and rejoined the military after September 11, 2001. Patton started as a group leader and was promoted to a group leader II in 2002. After returning from two weeks of active military duty in 2003, Target told Patton that he had not progressed as a group leader II and was demoted. Patton continued to receive e-mails regarding his duties as a group leader II after his demotion. He sent an e-mail to every company production controller stating that he had been demoted and to refer all future e-mails to his successor. Patton also contacted the Oregon National Guard to assist him in convincing Target to promote him back to a group leader II.
Target fired Patton, claiming that his e-mail constituted detrimental behavior to the company and violated policy. Patton filed lawsuit against Target, claiming that his demotion and firing violated USERRA and Oregon employment law. The jury deadlocked on Patton’s USERRA claim based on 1) Target’s showing that Patton received many negative marks on his annual review (conducted before Patton went on active military duty); and 2) the fact that Patton was rehired after returning from active military duty. However, the jury found that Target wrongfully terminated Patton, stating that Target retaliated against Patton for contacting the Oregon National Guard, and awarded him almost $1 million. The key piece of evidence in the jury’s award was an internal memo sent by Target management in 2002 to all employees asking whether they were subject to active military duty, and, if so, when. This memo is analogous to asking a female employee or potential employee whether she is pregnant or plans to become pregnant in the future.
Title VII is one of several federal statutes under which workplace discrimination lawsuits are traditionally filed. However, as the following case demonstrates, employers need to be aware that Title VII and other employment discrimination claims now are being filed by “untraditional” claimants.
In EEOC v. The Restaurant Co., Maria Torres was hired as a cook by The Restaurant Co. After several months, The Restaurant Co. hired Mario Centeno as the new food production manager. Two weeks after Centeno’s hiring, Torres alleged that Centeno began making frequent sexual comments about her body and appearance. Centeno also increased Torres’ job duties and refused to provide Torres with an opportunity for promotion after Torres refused his advances. Torres finally complained to management about Centeno’s harassment, and management issued a verbal and written warning to Centeno. However, management also discovered that Torres’ social security card did not match her name. Management told her not to return to work if she did not have a valid social security card that matched her name.
Torres sued The Restaurant Company for sexual harassment under Title VII and retaliatory discharge. The company argued that the Immigration Reform and Control Act (ICRA) prohibits employers from employing undocumented workers. Therefore, because she was an undocumented alien, she was not protected by Title VII and, thus, lacked legal standing to file her claim. However, the court found that civil rights actions are necessary to advance the public policy behind employment discrimination laws. Thus, if an undocumented alien could not pursue her civil rights claims under Title VII, the public policy behind employment discrimination laws would be “chilled.” The court ruled that Torres could pursue her claim under Title VII even though she was an undocumented alien.
Employment discrimination laws serve the public policy of protecting employees from discrimination in the workplace. This public purpose traditionally has been achieved through laws such as Title VII, ADEA and ADA. However, new wrinkles are weaving their into employment discrimination law. USERRA protects military men and women from workplace discrimination based on their military service. And traditional employment discrimination claims now are being made and pursued by “nontraditional” claimants. The rulings in these cases continue to serve the public policy behind employment discrimination laws: eliminating discrimination in the workplace.
To ensure compliance, employers must stay current on employment discrimination laws and the cases stemming from workplace discrimination claims. Employers also must maintain up-to-date guidelines and prevention training for supervisors and employees relating to workplace discrimination and retaliation. In addition, employers should regularly examine hiring, firing, disciplinary and promotion practices. Finally, employers must be aware that workplace discrimination claims no longer are limited to traditional employment law claims.
If you would like a copy of these cases or more information, contact Ehlke Law Offices. MF