DISCRIMINATION BASED ON MILITARY SERVICE
by Matthew Dolan, Attorney
©2014 Matthew Dolan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
A recent decision rendered by the 3rd Circuit Court of Appeals, Murphy v. Radnor Twp. [i], illustrates the significance of a federal anti-discrimination statute enacted in 1994, the intent of which is to protect current and former members of the military from employment discrimination.
USERRA (the Uniformed Services Employment and Reemployment Rights Act) was enacted in 1994, with the following stated purposes:
(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;
(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and
(3) to prohibit discrimination against persons because of their service in the uniformed services. [ii]
In pertinent part, USERRA states:
A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. [iii]
There seems to be a general appreciation on the part of public safety leaders that, when members of their agencies are called into military service, their military service obligations should not be detrimental to their employment standing with the agency. What may not be appreciated to the same extent is the obligation of public safety agencies when dealing with a potential applicant, as was the case in Murphy v. Radnor Twp.
In Murphy, an active reservist applied for the position of Township Manager. During his interview conducted before the members of the Township Board, it was alleged that the possibility of future deployments was raised as a matter of concern as it related to the manager position. Ultimately, the plaintiff was not selected for the position.
The plaintiff subsequently filed suit under USERRA, claiming that unlawful discrimination based on his military status was the cause of the Township’s decision not to hire him. The 3rd Circuit overturned a district court decision granting summary judgment to the Township. In its decision, the 3rd Circuit acknowledged that the Township put forth some seemingly legitimate reasons for the decision not to hire the plaintiff, but that:
USERRA requires that Radnor show a legitimate reason for not hiring Murphy that is "so compelling" and "so meagerly contested" that there is no genuine dispute that Murphy would not have been hired regardless of his future military obligations. We do not believe Radnor has met the USERRA standard as a genuine dispute of fact exists on whether Radnor would have hired Murphy absent his future military commitments. [iv]
Decisions such as the one in Murphy serve as a warning to employers that USERRA not only protects current employees but applicants as well. In light of the high numbers of USERRA-protected individuals seeking employment in public safety, agency leaders should be certain that their hiring process does not give rise to the appearance of discrimination based on military status. Furthermore, if an agency encounters a USERRA-protected individual who is not qualified for the open position for legitimate reasons, it is vitally important that those reasons are articulated and documented. USERRA-based discrimination claims may not be as common as those brought based on race, gender or other factors, but cases such as Murphy should serve as a reminder that the appearance of this type of discrimination can expose agencies to significant liability.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] Murphy v. Radnor Twp., 2013 U.S. App. LEXIS 21529 (3d Cir. 2013)
[ii] 38 USCS § 4301(a) (LEXIS 2014)
[iii] 38 USCS § 4311(a) (LEXIS 2014)
[iv] Murphy at 5.