Discrimination Against Member of Military

Discrimination against a member of the military is a serious issue, and it can have significant legal consequences in the state of California. In this overview, we will discuss the key aspects of discrimination against military personnel in the context of wrongful termination and employment law. We’ll cover the legal framework, factual allegations, potential problems, and provide examples to illustrate the points.

Legal Framework:

• Federal Protections: Discrimination against military members is prohibited under several federal laws, including the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans’ Reemployment Rights (VRR) statutes. These laws protect the employment rights of military personnel, including those in the California National Guard and Reserve.State Law: California has additional state laws that protect military members from discrimination. The California Military and Veterans Code, along with the California Fair Employment and Housing Act (FEHA), offers protection against discrimination based on military status, among other factors.Wrongful Termination Laws: In California, employment is generally considered “at-will,” meaning employers can terminate employees for any reason or no reason, as long as it’s not illegal. However, wrongful termination laws come into play when termination violates public policy or specific statutes.

Factual Allegations:

To establish a case of wrongful termination based on discrimination against a member of the military, the plaintiff must typically demonstrate:

1. Membership or Military Status: The employee must prove that they are a member of the military, such as active duty, reserve, or National Guard.Adverse Employment Action: The employee must show that they suffered an adverse employment action, such as termination, demotion, or denial of a promotion.Discriminatory Intent: The employee needs to provide evidence that their military status was a motivating factor in the adverse employment action. This can be challenging, as employers may not explicitly state their discriminatory intent.Causation: There should be a causal link between the military status and the adverse action. In other words, the employee must show that they were treated differently because of their military service.

Potential Problems

Several problems and challenges can arise in cases of military discrimination in wrongful termination claims in California:

1. Proving Discriminatory Intent: Discriminatory intent can be challenging to prove, as employers may provide legitimate reasons for termination unrelated to the employee’s military status. Establishing a clear connection between military status and the adverse action can be difficult.Mixed-Motive Cases: In some instances, an employer may have both legitimate and discriminatory motives for the termination. Determining which motive prevailed can be complicated.Lack of Awareness: Employees may not be aware of their rights under USERRA, VRR, or state laws, leading to delayed or inadequate reporting of discrimination.Statute of Limitations: Employees must file discrimination claims within specific timeframes, and missing the deadline can result in the loss of legal remedies.

Examples

Here are a couple of examples to illustrate potential cases of military discrimination:

1. Example 1 – Delayed Promotion: A National Guard member repeatedly requested time off for military training, and after returning, they were passed over for a promotion. If they can show that their military service influenced the promotion decision, it could be a case of discrimination.Example 2 – Hostile Work Environment: An employee in the reserves faces ongoing harassment from coworkers because of their military obligations. If the employer fails to address the harassment and creates a hostile work environment, it could be a basis for a discrimination claim.

Conclusion

In conclusion, discrimination against military members in the context of wrongful termination and employment law in California is prohibited and can result in legal consequences for employers. However, proving such discrimination can be challenging, and employees should be aware of their rights and consult with legal counsel when facing such issues to navigate the complexities of the legal system effectively.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2441. Discrimination Against Member of Military—Essential Factual Elements (Mil. & Vet. Code, § 394)

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her/nonbinary pronoun] because of [his/her/ nonbinary pronoun] [current/past] service in the [United States/California] military. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was an employee of [name of defendant];
2. That [name of plaintiff] [was serving/had served] in the [specify military branch, e.g., California National Guard];
3. That [name of defendant] discharged [name of plaintiff];
4. That [name of plaintiff]’s [[current/past] service in the armed forces/need to report for required military [duty/training]] was a substantial motivating reason for [name of defendant]’s decision to discharge [name of plaintiff];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New December 2012; Revised June 2013, June 2014

Directions for Use

Military and Veterans Code section 394 prohibits employment discrimination against members of the military on two grounds. First, discrimination is prohibited based simply on the plaintiff’s military membership or service. In other words, an employer, public or private, may not refuse to hire or discharge someone based on the fact that the person serves or has served in the armed forces. (Mil. & Vet. Code,

§ 394(a), (b).) Second, a military-member employee is protected from discharge or other adverse actions because of a requirement to participate in military duty or training. (Mil. & Vet. Code, § 394(d).) For element 4, choose the appropriate option.

The statute prohibits a refusal to hire based on military status, and also reaches a broad range of adverse employment actions short of actual discharge. (See Mil. & Vet. Code, § 394(a), (b), (d) [prohibiting prejudice, injury, harm].) Elements 1, 3, 4, and 6 may be modified to refer to seeking employment and refusal to hire. Elements 3, 4, and 6 may be modified to allege constructive discharge or adverse acts other than discharge. See CACI No. 2509, “Adverse Employment Action” Explained, and CACI No. 2510, “Constructive Discharge” Explained, for instructions under the Fair Employment and Housing Act that may be adapted for use with this instruction.

Element 4 uses the term “substantial motivating reason” to express both intent and

CACI No. 2441                   WRONGFUL TERMINATION

causation between the the employee’s military service and the discharge. “Substantial motivating reason” has been held to be the appropriate standard under the Fair Employment and Housing Act to address the possibility of both discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,

“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies to cases alleging military service discrimination under section 394 has not been addressed by the courts. However, military and veteran status is now a protected category under the FEHA. (See Gov. Code, § 12940(a).

Sources and Authority

• Discrimination Against Members of the Military. Military and Veterans Code section 394.
• Military and Veteran Status Protected Under Fair Employment and Housing Act. Government Code section 12940(a).
• “[I]ndividual employees may not be held personally liable under section 394 for alleged discriminatory acts that arise out of the performance of regular and necessary personnel management duties.” (Haligowski v. Superior Court (2011) 200 Cal.App.4th 983, 998 [134 Cal. Rptr. 3d 214].)

Secondary Sources

• Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 369, 472

• Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.03 (Matthew Bender)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.