State Employers Are Not Immune from USERRA Lawsuits

In 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) which protects military service members and veterans from employment discrimination because of their military service. USERRA requires that employers allow service members to regain their civilian jobs following their military service. Many states like Texas have implemented state laws that also protect service members at the state level.

Although one would believe Texas understands the importance of protecting our military service members, since it has passed laws to protect them, Texas has been fighting to protect itself from liability under USERRA.  Texas’ long battle has now come to an end, and now service members can sue state employers if they violate USERRA.

Le Roy Torres served our nation since 1989. In 2007, Mr. Torres was deployed to Iraq, and unfortunately, while on duty, Mr. Torres was severely burned and developed a respiratory condition that made it difficult to breathe. As a result of his respiratory condition, Mr. Torres was no longer able to continue his job as a state trooper. He then asked the Texas Department of Public Safety (“DPS”) to accommodate him by reemploying him in a different role. DPS refused, so Mr. Torres sued DPS in state court.

Mr. Torres alleged that DPS violated USERRA when it refused to accommodate his military related disability or return him to an equivalent position. DPS moved to dismiss Mr. Torres’ lawsuit invoking sovereign immunity. The trial court denied the motion. On appeal, the court reversed and concluded that Congress did have the authority to allow private lawsuit against non-consenting states. The Supreme Court of Texas denied its review.

The Supreme Court of the United States (the “Court” or “SCOTUS”) then granted certiorari to determine whether Congress’ authority to allow USSERA lawsuits against states was constitutional. The Court found that the Constitution gave Congress ultimate power to build and maintain our armed forces. When Congress passed USERRA in 1994, it had the authority to enact laws to support armed forces. The Court stated that states gave up their sovereignty to national military policy when states ratified the Constitution. The Court held that Congress’ authority was constitutional, and states could be sued under USERRA.

The Torres decision is a victory for service members in our country. Military service members no longer have to wonder if they can the State of Texas or any other state if it violates USERRA.

If you are service member and believe that you have been discriminated or retaliated against because of your military service, please schedule a consultation with me. You have fought for your country; now you deserve someone to fight for you.




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