America’s military service people are crucial to our defense. However, millions of these unsung heroes work in the private sector or hold non-military employment with state or federal agencies when not deployed. Employers, both private and government, are prohibited by law from discriminating against an employee because of their military service through USERRA, the Uniformed Services Employment and Reemployment Rights Act of 1994.

What Does USERRA Do?

Congress enacted USERRA pursuant to its constitutional War Powers, U.S. Const. art. I, § 8, cls. 11-16, recognizing that unremedied employment discrimination by state employers based on military service could interfere with the nation’s “ability to provide for a strong national defense.” H.R. Rep. No. 105-448, at 5 (1998). Simply put, if employers, whether private or government, are allowed to discriminate against military service members, it could jeopardize the nation’s ability to protect itself by reducing the number of people willing to enlist in the U.S. Armed Forces.

How Does USERRA Protect Military Service people from Discrimination?

According to the U.S. Department of Labor, “USERRA protects civilian job rights and benefits for veterans and members of Reserve components. USERRA also makes major improvements in protecting service member rights and benefits by clarifying the law, improving enforcement mechanisms, and adding federal government employees to those employees already eligible to receive Department of Labor assistance in processing claims”. However, a USERRA cause of action against state employers may be pursued only in state courts.

The Texas Ruling

In a sharply divided decision at odds with the Constitution, a Texas intermediate appellate court determined that USERRA provision requiring suits against state employers in state courts is unconstitutional because Congress lacks the power to authorize lawsuits against non-consenting states pursuant to its War Powers. It is worth noting that states cannot be sued in Federal Courts because the 11^th Amendment bars this, so the necessary question is “What rights do service members who are employees of a state have against that state for violations of USERRA?” According to Texas and several other states, the answer is simple: None.

The case now heading to the Supreme Court originated in a case brought by Le Roy Torres, a U.S. Army Reserve retiree and veteran of the Iraq conflict, against the Texas Department of Public Safety. Torres, a career Texas state trooper, served with DPS for 18 years, but during his time in Iraq, was exposed to toxic fumes from open-air burn pits on U.S. military bases, which catastrophically damaged his lungs.

After his return from Iraq and his honorable discharge, Torres advised the Texas Department of Public Safety of his intent to be reemployed, as defined by USERRA, as well as the fact that his lung damage prevented him from performing all of the duties previously required of him as a state trooper. DPS declined his request for a reasonable accommodation, such as a desk job with all the pay and benefits to which he was entitled, offered him a temporary role in his previous position, and informed him that failure to report for duty would result in immediate termination. Torres understandably resigned.

In 2017, Torres and his wife filed suit against the Department, seeking relief under USERRA for what appeared to be an obvious breach of the law. The trial court denied the state’s motion to dismiss the case, but an appellate court found that USERRA was unconstitutional and Congress did not have the authority to authorize suits against the states in state courts.

This is the question that now heads to the U.S. Supreme Court. If SCOTUS decides to hear this case and ultimately rules in favor of the state of Texas, thousands of service members will find themselves in danger of discrimination by their state employers without recourse, and the nation will have failed in its duty to protect the heroes who protect us.