The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) protects a National Guardsman from discrimination in hiring, retention, promotions, or other benefits because he’s a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service. But USERRA doesn’t protect members of the California State Military Reserve or Naval Militia. At ease! California law imposes substantial penalties on anyone who discriminates against a member of the state’s Active Militia – the California National Guard (CANG), California State Military Reserve (CSMR), and California Naval Militia (CNM).
Discrimination Against an Active Militiaman Violates the Military & Veterans Code
The California Military and Veterans Code broadly prohibits anti-military discrimination. No employer or other person may: (1) fire an employee because he has performed or will perform military duty or training or because he is or was an Active Militiaman; (2) harm him because he has performed or will perform military service or duty or has attended or will attend a military encampment or place of drill or instruction; (3) hinder or prevent him from performing military service or attending any military encampment or place of drill or instruction; or (4) dissuade, prevent, or stop him from joining the CANG or CNM (though not the CSMR) by threatening to injure him in his employment, position, status, trade, or business because he wants to join up.1
The penalties for discrimination based on one’s membership or service in the Active Militia are substantial. For each act of discrimination, the defendant is guilty of a misdemeanor and will be liable for any actual damages or reasonable attorney’s fees that the Active Militiaman incurs in a civil action.2 Moreover, an Active Militiaman can recover “any amount,” up to a maximum of three times the amount of actual damages, but in no case less than $4,000 – without the need to prove that the violation rose to the level of malice, oppression, or fraud.3 For example, an Active Militiaman who sustains $10,000 in lost wages, emotional distress, and other actual damages can recover up to $30,000 in treble damages.
Discrimination Against an Active Militiaman Also Violates the Fair Employment & Housing Act
Many Active Militiamen may also sue for employment discrimination under California’s Fair Employment & Housing Act (FEHA). Under FEHA, an employer who regularly employs five or more employees can’t engage in any unlawful employment practice against an employee or applicant for employment based on his “military or veteran status.” FEHA protects a “member or veteran” of “the United States Armed Forces, the United States Armed Forces Reserve, the United States National Guard, and the California National Guard.”4 Thus, current and former CANG members are eligible for protection under FEHA, though current and former members of the other two branches of the Active Militia aren’t.
The distinction between the “California National Guard” and the “United States National Guard” (of which the CANG becomes a part when the President or Congress calls it to federal duty) suggests that FEHA protects someone who served on federal or state active duty in the CANG or on federal duty another state’s National Guard. But the legislative history of the 2013 amendment that added “military and veteran status” as a protected characteristic is unclear about whether the amendment also protects someone who only served on state active duty in another state’s National Guard. Thus, FEHA might protect a former Missouri National Guardsman who deployed to Afghanistan, but not one who only deployed to Ferguson.
In some cases, a member of the CSMR or Naval Militia or a veteran of another state’s National Guard can sue for discrimination under FEHA. In fact, even someone who has never worn a uniform at all can sue for discrimination. This unusual outcome is the result of FEHA’s broad concept of a “protected characteristic” as including the employer’s “perception” that the plaintiff has that characteristic.5 For example, some employers don’t want to hire a Guardsman or Reservist out of fear he will have to take frequent military leaves of absence. Thus, an employer can be liable for discrimination against a member of the CSMR if the employer, not knowing the difference between the CSMR and the Guard, mistakenly believes him to be a Guardsman.