Employer’s Support of Military and Vets A Defense to USERRA Bias Claim

In most cases of discrimination on the basis of a protected class, evidence that the defendant employer actively commits to fair employment and diversity objectives has little weight, including participation in programs that support the protected class involved in the case.? For example, an employer charged with discriminating against a female alleging sexual harassment or gender harassment is not going to get anywhere with a showing of a progressive attitude in a summary judgment motion, or in front of a jury.?

In our hypothetical claim, consider an employer’s offer of testimony and documentation that the employer for years has supported progressive legislation protecting the rights of women in the workforce, or has contributed to a foundation that promotes glass ceiling progress for women, or has internally sponsored networking events that focus on female empowerment (or all of these). ?Such evidence is usually of little relevance, and could even backfire in the mind of a fact-finder where the plaintiff seems credible, leading to skepticism that the public corporate conduct is window dressing.

It was a different story in a recent case that was brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA). ?The federal district magistrate judge in Porter v. Trans State Holdings, Inc. F. Supp. 3d, 23-cv-00263-SBP (D. Colo., 11/7/24), was called upon to decide whether an employer discriminated against a naval reservist because of his military status and multiple mobilizations, including a seven-month overseas deployment and a three-year assignment at the Pentagon.? Porter alleged that he was unlawfully passed over for several promotions.

It was Porter’s burden to show that his naval reserve status was a “motivating or substantial factor” in Trans State’s handling of these promotions. ?He had presented evidence of stray remarks that were anti-military but the court dismissed these as a “smattering of disconnected” comments. He cited several of the employer’s personnel documents as biased against servicemen. The court noted that because of the company’s close ties to the military and its large veteran constituency, it was not unusual for policies to address the differences between work rules and practices in the uniformed services and at the company.? To the court these references were “benign.”

On the defendant’s side of the case, the court found that the company had in fact taken a “decidedly” pro-military stance – not directed to Porter individually but as a corporate citizen.? It had won awards for its support of service members.? It managed a “Military Rotary Program” that assisted Navy pilots in making the transition to jobs in commercial aviation.

The court ruled that an employer’s evidence of a “strong and consistent pro-military and veteran stance” is relevant to the legal sufficiency of a USERRA discrimination claim as a matter of law.? Porter’s claim was dismissed. ?

NOTE: Employers should be mindful of the risk of manufacturing the appearance of being pro-military, as opposed to providing evidence of the “strong and consistent” stance determined in this case. ??Porter could not come up with hard evidence to show that the denial of the promotions was motivated by his status, including the use of comparisons of his overall qualifications with those (non-servicemen) who got the promotions.? But in a case where such comparisons present issues for the employer that could doom a motion for summary judgment, the pro-military stance still matters, but alone will not carry the day. ?