Amidst an onslaught of highly controversial decisions handed down by the United States Supreme Court in recent weeks, it appears the Court got one right when it issued a 5-4 ruling on Wednesday, June 29, 2022, allowing military service members to sue state agencies for discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA). If nothing else, this decision clarifies the otherwise longstanding uncertainty as to whether or not states are afforded sovereign immunity from such lawsuits. It is clear now – they are not!
USERRA is a federal statute delineated by 38 U.S.C. Chapter 43, which establishes certain employment and re-employment rights for military service members – both past and present. It protects them from workplace discrimination based on their affiliation with the military. This issue is most commonly seen when a member of the Reserves or National Guard is called into military service and, after returning from their service commitment, is either prevented from returning to their previous job or applying for re-employment. The statute imposes strict liability upon employers – which now includes state agencies – meaning that if a veteran or service member can establish membership within the uniformed services and that they were subjected to an adverse employment action due to their affiliation with the military, then the employer is held strictly liable for the action at issue regardless of the employer’s intent. If successful, claimants can expect to recover economic damages such as lost wages, attorney’s fees, and in certain circumstances, compensatory damages.
At oral arguments, Andrew T. Tutt, a lawyer for the plaintiff, told the Justices that:
[The] Constitution gave Congress the power to raise and support Armies, and the reason for that grant was to ensure the survival of the nation.
He explained that the law’s protections are “crucial in light of the structure of the modern military” and noted that to convince soldiers to join the reserves force, Congress promised them “they would not be discriminated against on the basis of their military service or service-connected injuries.”
The Biden administration supported the plaintiff, arguing that the protections under the law “are especially important today to Guard and Reserve forces, who both serve the nation and work for employers” and that the protections incentivize participation.
As mentioned earlier, the question of whether States were immune to lawsuits filed under USERRA had long been foggy. With this decision, that is no longer the case. The notion that States are now held accountable for their actions under USERRA is a monumental victory for the employment rights of our military’s returning service members and veterans. Whether conservative or liberal, there should be no debate that our veterans and current military service men and women deserve better treatment from the nation they swore to protect; today’s decision is one small step towards accomplishing just that.
