USERRA Advisor

General Discrimination

In drafting USERRA, Congress referred to "benefits" or "rights and benefits" of employment. The list of rights and benefits under Section 4303(2) of USERRA does not attempt to show all of the benefits but only to illustrate the limitless variation in benefits of employment bestowed by employers. In this context, a person's working conditions may be considered as one of the benefits of employment. Since USERRA prohibits an employer from denying or depriving an employee of any benefit of employment for reasons related to that person's uniformed service obligation, discrimination that deprives an employee of working conditions provided to other employees is likewise prohibited if the uniformed service was a motivating factor in the employment action.

To prove a case of discrimination, the claimant must show, by a preponderance of the evidence, that his or her involvement in the uniformed services was a substantial or a motivating factor in the adverse employment action taken by an employer against him or her. To prove a claim of discrimination, a claimant may use direct or indirect evidence. One example of direct evidence would be an employer’s repeated criticisms of an employee based on that person's involvement in the uniformed services. Examples of indirect evidence of discrimination include management actions against the claimant that adversely affect the claimant's work conditions, job assignments or use of office equipment. To defend against a claimant's discrimination, an employer must show, by a preponderance of evidence, that the same decision would have been made even if the employee had no uniformed service involvement.

Employees, including past, present or future service members, are subject to all employment policies affecting employees' performance and working conditions as long as these policies do not penalize a person for service in the uniformed services. All employees must follow an employer's policies and procedures established specifically to address non-USERRA related employment issues and grievances. Policies or procedures that contain provisions infringing on a service member's rights under USERRA may be a violation of USERRA.

For more information, please review specific discriminatory employment actions.