Military Status Discrimination
Military Status Discrimination: Protected Everywhere, By Federal Law
USERRA: The Core Federal Protection
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employment discrimination based on past, current, or future military service, and guarantees returning service members the right to be reemployed in the job they would have attained had they not left for military service — known as the “escalator” principle, since it accounts for any promotions or raises you would have received.
USERRA is unusually broad in a way that matters a great deal: it applies to virtually every employer in the country, regardless of size, including the federal government. There’s no 15-employee threshold to worry about the way there is with Title VII, and no need to look to state or local law to fill a small-employer gap the way you would for many other discrimination topics.
What USERRA Protects
USERRA covers current and former members of the uniformed services (Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, and Public Health Service commissioned corps), as well as people who have applied to join. An employer cannot deny you:
- Initial employment
- Reemployment after military service
- Retention in employment
- Promotion
- Any other benefit of employment
because of your military status. USERRA also protects your right to continued health coverage during service (up to 24 months) and treats your time in military service as continuous employment for pension purposes.
Reemployment Rights: What You Need to Qualify
To qualify for USERRA’s reemployment protections, you generally need to have given your employer advance notice of your military service, have five years or less of cumulative service with that employer (with several exceptions), have avoided a disqualifying discharge (dishonorable, other-than-honorable, or bad conduct), and have reported back to work or applied for reemployment within the required time frame — which ranges from the next scheduled work period for short absences to 90 days for service of 181 days or more.
Worth knowing: once reemployed, USERRA also protects you from being discharged without cause for a period afterward — one year if your service was 181 days or more, 180 days if your service was 31 to 180 days.
How to File a Claim
You can file a complaint with the Department of Labor’s Veterans’ Employment and Training Service (VETS), which will investigate and attempt to resolve the matter. If VETS can’t resolve it, the case can be referred to the Department of Justice (for private, state, or local government employers) or the Office of Special Counsel (for federal employees), or you can bypass this process and file a lawsuit directly in court with your own attorney.
DC and Maryland: A Reversal of the Usual Pattern
On most topics covered on this site, DC’s law is broader than Maryland’s. Military status discrimination is a notable exception:
- Maryland explicitly lists military status as a protected trait under the Maryland Fair Employment Practices Act (FEPA), giving Maryland workers a state-law claim in addition to USERRA.
- DC’s Human Rights Act does not list military status among its explicitly named protected traits the way it does for traits like personal appearance or political affiliation. This means DC workers generally rely on USERRA as their primary protection for this specific issue, rather than a parallel DC-specific claim.
In practice, this matters less than it might for other topics, since USERRA already applies to every employer in both jurisdictions regardless of size — the kind of gap DC’s broader coverage typically fills for other traits simply doesn’t exist here.
What Compensation Can You Recover?
Under USERRA, you may be entitled to:
- Lost wages and benefits
- Liquidated damages up to double your lost wages and benefits, if the violation was willful
- Reinstatement to your position
- Attorney’s fees and costs
If a Maryland state-law claim also applies, additional remedies under FEPA — including compensatory and punitive damages, generally capped between $50,000 and $300,000 depending on employer size — may be available as well.
Talk to a Military Status Discrimination Attorney
Whether you’re a veteran, a current service member, or someone in the National Guard or Reserves, USERRA gives you real protection almost everywhere you might work. If you believe your employer denied you a job, a promotion, or your former position because of your military status, it’s worth understanding your options.
Or call 301.245.3035 · Intake@WilkenfeldLO.com