Third Circuit Court of Appeals Rejects Broadening USERRA’S Evidentiary Burden For Discrimination Claims

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against members of the U.S. military and imposes various obligations on employers with respect to service members returning to their civilian workplace. 

USERRA differs from other employment laws (e.g., Title VII, ADEA) in multiple respects.  For example, USERRA has no statute of limitations of any kind for claims that accrued after October 10, 2008 (and claims that accrued after October 10, 2004 may be timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.  Also, USERRA applies to all public and private employers, irrespective of size.  Therefore, “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a). 

Another unique aspect of USERRA is the evidentiary framework employed for discrimination claims.  Unlike with Title VII or other employment statutes, USERRA does not use the three-step McDonnell Douglas burden shifting framework.  Instead, an employee bringing a discrimination claim under USERRA must show by a preponderance of the evidence that his/her military service was a substantial or motivating factor in the employer’s adverse employment action.  If this showing is made, the employer has the burden to establish the affirmative defense that it would have taken the adverse employment action anyway, irrespective of the employee’s military service.  See 20 C.F.R. § 1002.22.   

In a relatively rare appellate level USERRA case, the Third Circuit Court of Appeals in Carroll v. Del. River Port Auth., No. 16-2492, 2016 U.S. App. LEXIS 21993 (3d Cir. Dec. 12, 2016) faced an employer arguing that implicit in an employee’s requisite showing for a discrimination claim under USERRA was that the employee was “objectively qualified for the position sought.”  Not so, according to the court.  The Third Circuit rejected the authority the employer presented concerning the objectively qualified element of the prima facie showing under McDonnell Douglas in the contexts of Title VII, the ADA, and the ADEA.  For a USERRA discrimination claim, the court held, an employee’s burden was confined to the “substantial or motivating factor” showing.  Accordingly, “plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under USERRA.”

Employers should ensure that Human Resources and managers understand the unique aspects of USERRA, including its evidentiary framework.