16.2 Rights and Responsibilities

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

16.2 RIGHTS AND RESPONSIBILITIES

16.201 In General. In addition to providing reemployment and benefits rights, USERRA prohibits employers from discriminating against persons due to their service in the uniformed services and from retaliating against an individual for exercising his or her rights under USERRA.

The following types of employment decisions are covered by the antidiscrimination and anti-retaliation provisions:

1.	Initial employment;
2.	Reemployment; 17
3.	Retention;
4.	Promotion; 18
5.	Pay raises;

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6.	Ability to bid for other jobs or request transfer to other jobs or facilities; and
7.	Any other "benefit(s) of employment," including wages or salary, as well as protection from hostile work environment. 19

16.202 Discrimination. Employers may not discriminate in employment decisions against employees or applicants because of any past, present, or future military obligations. ²⁰ Individuals who are members of, apply to be members of, or who have performed, have applied to perform, or have an obligation to perform service in the uniformed services may not be denied initial employment, reemployment, retention, promotion, ²¹ or any benefit of employment ²² by an employer on the basis of that membership, application for membership, service, or obligation. ²³

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16.203 Retaliation. An employer may not retaliate against an individual for asserting his or her rights under USERRA or for participating in the investigation of a USERRA claim. ²⁴ USERRA provides that an employer may not discriminate in employment or take any adverse action against any person because such person has taken action to enforce a protection afforded by USERRA, has testified or otherwise made a statement in connection with any proceeding under USERRA, or has assisted or otherwise participated in an investigation under USERRA. ²⁵ This anti-retaliation provision applies regardless of whether or not the person in question has performed service in the uniformed services. ²⁶

16.204 Accommodation. Section 4311 of USERRA contains no duty to accommodate. The Seventh Circuit Court of Appeals addressed this issue, holding that a police department did not violate USERRA by failing to offer two active-duty police officers a chance to take their sergeant's exams at the military bases on which they were serving. ²⁷ All candidates take the competitive examination at the same time to eliminate the risk of cheating. The officers, upon learning they would be out of the country on military duty on the date of the exam, sought permission to take their exam outside of the United States. The city offered out-of-country locations to both officers, who accepted without protest. Both officers passed the exam and were placed on

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the eligibility list for promotions. After the first person on the list was promoted, however, the officers sued. They alleged that if they had taken the exam on or nearer to their bases—eliminating the cost and risk of traveling from their bases to the alternate location—they would have scored higher on the exam and been promoted earlier. The court held, however, that Section 4311 is an anti-discrimination provision only, and contains no accommodation requirement. In this case there was no discrimination present because both officers were allowed to take the exam.

16.205 Burden of Proof. An employer's denial of employment or other adverse action taken against an employee is unlawful if the employee's military obligation was a motivating factor (not necessarily the only factor) in the denial of employment or adverse employment action, unless the employer can prove that the action would have been taken in the absence of the military obligation. ²⁸ The employee must first establish a prima facie case of discrimination by showing that the military obligation was at least a motivating factor in the adverse employment action. ²⁹ Once the employee has established that his or her military obligation was a motivating factor, the burden shifts to the employer to prove that the action would have been taken regardless of the military obligation. ³⁰

Authorities disagree on how to interpret the interaction between sections 4311 and 4312...