Discrimination and Reemployment After Military Leave 18:55, July 10, 2016

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Discrimination and Reemployment After Military Leave

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A lawsuit alleging discrimination against an employee’s military status and leave illustrates a robust law, and a call for employers to reassess their compliance efforts.

Richard Keene was a data coordinator for Clark County School District (“CCSD”) and a reservist for the US Army. In 2007, the Army sought to deploy Keene to Iraq in 2008, requiring him to take intermittent military leave—sometimes several weeks away from work. Each time he took leave, Keene provided notice to CCSD.

Keene requested extended military duty from June 2008 to August 2008, which CCSD accepted. In late May 2008, however, the Army canceled his extended duty. Keene informed CCSD of his change of plans, and submitted two requests to return, but was nonetheless out of a job. After months of unemployment, and a short military leave, in November 2008 Keene asked to be reinstated to a data coordinator position. CCSD accepted, but made him responsible for another district that apparently offered less promotional opportunity. Keene later asked for a teaching position (CCSD accepted), and then an administrative position (CCSD did not accept). Keene resigned shortly thereafter.

Keene sued CCSD, citing discrimination under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Under USERRA, “any person who is absent from a position of employment . . . by reason of service in the uniformed services shall be entitled to . . . reemployment rights and benefits.”

The Court found sufficient evidence of bias when it looked at Keene’s high performance marks except for one performance review where Lewis stated Keene’s time was “divided between his duty to our country” as a negative. While CCSD always accepted his leave requests, Keene stated that his supervisor, Arlene Lewis, made hostile comments in response to the requests, such as telling Keene to choose between the Army and CCSD.

The Court found CCSD could neither legally refuse Keene’s requests for reinstatement in May and June 2008, nor could it decide to place Keene in a position that did not offer the same benefits available pre-military leave in November 2008. The position had to be the same one. The Court did not buy CCSD’s argument that hiring Keene back would be an undue hardship as it offered no proof, nor did it think CCSD’s actions after November 2008 were discriminatory against Keene’s military status- mostly because Keene could not prove it.

As a result, a “jury could find that Keene’s military service was a motivating factor behind the adverse employment actions.” [Keene v. Clark County School District (USDC DNV June 30, 2016) no. 214-cv-00381.]

As illustrated, USERRA asserts reemployment rights, not unlike the Family and Medical Leave Act (FMLA), as well as anti-discrimination protections of military service or status, not unlike Title VII. USERRA applies to almost all employers, regardless of size. This is different from Title VII (which generally applies to employers with 15 or more employees) and the FMLA (which applies to employers with 50 or more employees, among other requirements).

According to the US Department of Labor, 1,328 complaints under USERRA were filed in 2013. 38% of these complaints contained allegations of discrimination and 25% were complaints of improper reinstatement following military leave.

Military status is one characteristic that is protected from discrimination by federal laws.  Other protected characteristics include race, national origin, religion, and sex. Sex discrimination in particular has been a hot-button issue in 2016, considering tech industry hiring practices and legal interpretations of Title VII to proscribe sexual orientation bias.

Educating employees about workplace discrimination and harassment is one way to help prevent lawsuits. More importantly, online compliance training is a great way to imbue company culture with a strong sense of compliance as it can inform behavior that makes the workplace a better place to work.

LawRoom offers online training programs that focus on overcoming the barriers to doing what is right in areas like sexual harassmentethics, the FCPA, and data security. To learn more about avoiding discrimination in the workplace, visit us here: LawRoom.com.

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Douglas Kelly
Douglas Kelly is EverFi's lead legal editor. He writes on corporate compliance and culture, analyzing new case law, legislation and regulations affecting US companies. Before joining EverFi, he litigated federal and state employment cases and wrote about legal trends. He earned his JD from Berkeley Law and BBA from Emory University.

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