A little more than a year after U.S. Army veteran Le Roy Torres kept his case alive at the U.S. Supreme Court, a Texas jury voted unanimously to award him $2.49 million on the claim that his former employer, the Texas Department of Public Safety, failed to accommodate Torres’ service-connected disabilities. The case, brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA), underscores the broad and sometimes-overlooked protections of the law enacted to mitigate the employment disadvantages that stem from military service. USERRA prohibits employers from discriminating and retaliating against employees or applicants because of their military status or military obligations. USERRA also protects the reemployment rights of individuals who leave their civilian jobs to serve in the military.

Background

In 2007, Torres, a Texas state trooper and Army reservist, deployed to Iraq, where he was exposed to toxic burn pits, a method of garbage disposal that sets open fire to all manner of trash, human waste, and military equipment. After returning to the United States from his combat deployment, he was diagnosed with a severe respiratory condition that left him unable to perform his former job. Torres asked the Texas Highway Patrol to accommodate his condition by reemploying him in a position he could perform. When the state refused, he resigned and brought suit under USERRA which, in addition to prohibiting discrimination against service members, requires employers to reasonably accommodate service-connected disabilities.

Before he could get his day in court, however, Torres had to overcome Texas’ argument that the state enjoyed sovereign immunity from USERRA suits. The case eventually landed at the U.S. Supreme Court, which in June 2022 held that state employers do not have sovereign immunity from USERRA suits because of the federal government’s broad war powers.¹ Having cleared this hurdle, the case proceeded to trial late last month. On September 29, 2023, a state court jury unanimously awarded him $2.49 million after only two hours of deliberation.

The Torres Case Highlights the Breadth of USERRA’s Protections

The high-profile case reveals several ways in which USERRA is more far-reaching than other employment anti-discrimination laws even though it generally gets less attention. First, USERRA applies to virtually all employers, including state governments. Another notable strength of USERRA is that it does not contain an exhaustion requirement. The lack of an exhaustion requirement means that a USERRA plaintiff is not required to file a complaint with any federal or state agency before filing a lawsuit. As a result, USERRA actions often move at a faster pace than claims brought under other employment protection statutes.

Second, USERRA’s disability protections exceed those found in the Americans with Disabilities Act (ADA). USERRA defines “disability” more broadly and covers any disability incurred or aggravated during military service, whereas the ADA’s coverage of only those disabilities that meet the ADA’s statutory definition of disability. As a result, a disability covered by USERRA is not subject to the ADA’s requirement that the disability “substantially limit” one or more of the individual’s major life activities. This means that even if a service member would not have a claim under the ADA, they would be entitled to all of USERRA’s protections if their military service caused or aggravated a disability.

In addition, USERRA imposes greater accommodation duties than the ADA. Indeed, the U.S. Equal Employment Opportunity Commission (EEOC) expressly noted in a 2020 guidance document that “USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran” who is returning to employment with disabilities incurred or aggravated during military service.²  Specifically, the employer must make reasonable efforts to accommodate the disability and return the service member to the position they would have attained but for military service (i.e., the escalator position). If the service member is no longer qualified to perform the escalator position due to disability, the employer must make reasonable efforts to accommodate the disability and help the employee become qualified to perform a job with equivalent seniority, status, and pay to the escalator position. This requirement could include providing training or retraining for the position at no cost to the service member. These distinctions are particularly important for employers that may be more accustomed to addressing accommodations under the ADA.

Second, USERRA lacks a statute of limitations and expressly prohibits courts from applying a state statutory limitations period. In Torres’ case, the verdict represented 11 years of back pay. By running afoul of USERRA, employers open themselves to significant damages awards years after the alleged violation.

Third, the unanimous verdict, decided within two hours of deliberation, underscores that employers defending against USERRA claims can face punitive results as well as reputational harm as a result of the public’s sympathy and support for veterans.

Other Developments Affecting USERRA Rights

Torres’ case is not the only development in this area demanding employers’ attention. In recent years, federal courts have increasingly taken a broader reading of what constitutes an “adverse action” in the workplace under Title VII.³ Equally important, the EEOC and the U.S. Department of Justice have also broadened their reading of what is considered such an adverse action. This pro-plaintiff trajectory by the courts and federal agencies could have important implications for USERRA litigation. Because courts often rely on Title VII case law to analyze USERRA claims, the evolving standards will likely make it easier for USERRA plaintiffs to challenge a wider range of employer practices.

In addition, multiple lawsuits pending in federal appellate and district courts across the country claim that USERRA requires employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences, such as for jury duty, sick time, vacation, or bereavement. While the litigation is ongoing, the potential exposure to employers could be significant if courts require short-term paid military leave where employers also provide paid leave to workers taking non-military leave.

While USERRA litigation is not so common as claims under Title VII and the ADA, the Torres case and other recent developments show that employers disregard this potentially expansive law at their peril.