Discrimination – Military Leave Bias

When you think of employment discrimination, you probably think of protected traits like gender, race, disabilities, age, or religion, among others. But the country’s involvement in two hot wars over the past decade has put another type of discrimination on the radar screen: discrimination based on military service.

Federal and state laws clearly protect service members from discrimination and retaliation, but can service members sue their supervisors for violations? The California Court of Appeals recently addressed that question for the first time. We’ll fill you in on the current state of the law on the issue.

Military Member Alleges Discrimination

Mario Pantuso was called to active duty with the Navy while employed by Wisconsin-based Safway Services. When he returned from a six-month deployment in Iraq and asked for his job back, his immediate supervisor, Mike Haligowski, and the regional manager, Greg Chomenko, informed him that he was terminated.

Pantuso sued Safway, Haligowski, and Chomenko for discrimination and retaliation under Section 394 of the California Military and Veterans Code. He claimed that because of his Navy membership, Safway and the two others: 1) gave him negative performance evaluations after he told them he would be deployed, 2) terminated him, and 3) refused to pay him an earned bonus.

Haligowski and Chomenko asked the trial court to toss out the claims against them, but the court found that they could be liable as individuals under Section 394. The two men appealed that ruling.

Court of Appeals Rejects Supervisor Liability

Section 394 prohibits employers from discharging or otherwise discriminating against an employee because he or she is a member of the state or U.S. military or is ordered to duty or training. The section states that:

No person shall discriminate against any officer, warrant officer or enlisted member of the military or naval forces of the state or of the United States because of that membership. No member of the military forces shall be prejudiced or injured by any person, employer, or officer or agent of any corporation, company or firm …

The problem for the Court of Appeals is that the Military and Veterans Code neither defines “employer,” “person,” “agent,” or “officer,” nor spells out a supervisor’s exposure to personal liability for violations.

The court turned to the state Fair Employment and Housing Act (FEHA), an employment discrimination statute that contains similar language and embodies similar goals.

It noted that two California Supreme Court cases and one appellate court case have established that individual supervisors can’t be held personally liable for discrimination or retaliation under FEHA. The court reasoned that because both FEHA and Section 394 are antidiscrimination laws, the logic for declining to hold supervisors liable under FEHA should apply to Section 394.

Importantly for employers, the Court of Appeals stressed that its interpretation of Section 394 maximizes the rights of members of the military by preventing employers from avoiding liability by claiming that individual managers or supervisors deviated from the employers’ policies.

What About USERRA?

The federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) also prohibits employers from discriminating and retaliating against individuals based on their military service.

The U.S. Department of Labor’s regulations for the USERRA establish that individual supervisors can be held personally liable for discrimination and retaliation.

As the Court of Appeals pointed out, the USERRA defines “employer” as “any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including … a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities[.]”Supervisors clearly fall within that definition. (It is unclear why Pantuso didn’t bring his claim under the USERRA.)

(Haligowski v. Superior Court of Los Angeles County (Pantuso), Calif. Court of Appeals (Dist. 2) No. B231310, 2011)

Training Is Essential

It’s worth noting that the Court of Appeals didn’t rule on the merit of Pantuso’s claims against Safway—the employer could well end up liable for its supervisors’ actions. The case illustrates the importance of training your supervisors on employee leave entitlements and related rights. If they screw up, guess who’s going to pay for it?

By Jennifer Carsen, Esq.

From…California Employer Daily

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