USERRA: Military Reservist Need Only Show that Military Service was a Motivating Factor in Decision Not to Hire

Failure to hire cases are often difficult to prove. A recent Third Circuit decision, Murphy v. Radnor Township, 2013 U.S. App. LEXIS 21529 (3rd Cir., October 23, 2013), shows that in a situation where a military reservist applies for a job and is not hired for a job for which he meets the qualifications, a failure to hire claim may be proven. In Murphy, the Plaintiff, who joined the Air Force in 1997, was on active duty for five years and has served in the Active Reserves since 2002, applied for the position of Township Manager for Radnor Township and interviewed before the Board of Commissioners for 45 minutes. There was 10 minutes of questioning on military obligations, including how many days Plaintiff was absent during his previous employment due to his military duties and how Radnor would be affected by any future military obligations. Plaintiff was informed that while he was in the Board’s top four choices, the Board was not going to invite him back for a second-round interview. Plaintiff claimed that he was told that the Board had serious reservations about his ongoing military obligation. None of the other applicants interviewed or offered a second-round interview had a military background or current military obligations.

Plaintiff filed a lawsuit alleging violations of USERRA (the Uniformed Services Employment and Reemployment Act). The District dismissed the case granting summary judgment and holding that, although Plaintiff had met his burden in proving that his military obligations were a motivating factor in Radnor’s decision not to hire him, Radnor presented evidence of numerous legitimate non-discriminatory reasons, other than military obligations sufficient to overcome the claims. The Third Circuit reversed the District Court and held that USERRA requires that a potential employer show a legitimate reason for not hiring an employee that is “so compelling” and “so meagerly contested” that there is no genuine dispute that the employee would not have been hired regardless of his future military obligations. In so doing, the Third Circuit noted that USERRA establishes a two-step burden-shifting framework to analyze such claims. First, the plaintiff alleging the discriminatory act bears the initial burden of showing that the employee’s military service was a substantial or motivating factor in the adverse employment action. If the plaintiff meets his burden, the burden of proof then shifts to the employer, which must prove that it would have taken the adverse action for non-discriminatory reasons, regardless of the employee’s military service.

USERRA was enacted, in part, to prohibit discrimination action against persons because
of their service in the uniformed services and an employer violates USERRA if the person’s membership in the military is a motivating factor in the employer’s action. As with other employment discrimination claims the standard of proof is a critical issue. However, unlike many employment discrimination claim standards, under USERRA, the Plaintiff need only show that military service was a “motivating factor.” In Murphy, the Court found that the Plaintiff had
adduced sufficient direct evidence that his military commitments were a substantial or motivating factor in Radnor’s decision to not extend a second-round interview because the Board
engaged in an extended line of questioning regarding military obligations, including the specific number of days the employee would be absent each year. The Third Circuit noted that under USERRA, the employer does not merely have the burden of producing a legitimate, non-discriminatory reason; rather the employer has the burden of producing a legitimate reason for the adverse employment action that is so overwhelming, “so compelling,” and “so meagerly contested” that there is no genuine dispute that the employee would have received the same treatment regardless of his future military obligations.

For more information on USERRA and Abramson Employment Law, see


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Filed under Employment Law, Failure to Hire, USERRA: Uniformed Services Employment and Reemployment Rights Act

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