When the call comes through, your employer is likely one of the first people you tell. Leaving the job to serve is likely an accommodation that was discussed in the interview, but what happens when the time adds up, and when promotions start being given out, your employer skips over you? A quiet doubt creeps in. Was it because of the “absences in availability”? Can an employer deny a promotion because of military service? 

Servicemembers and veterans have significant federal protections against employment discrimination based on military service. An employer cannot deny an employee a promotion simply because the employee serves in the military or may have future military obligations.

However, USERRA does not guarantee every servicemember a promotion. Whether a denied promotion violates the law generally depends on why the employer made the decision and, for an employee returning from military service, what position the employee likely would have reached if military service had not interrupted an otherwise consistent civilian career.

The Legal Framework: Understanding USERRA

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects servicemembers and veterans in civilian employment. It applies to virtually all U.S. employers regardless of size.

USERRA contains two protections that are especially important in promotion cases.

First, an employer cannot deny a promotion because of an employee’s past, present, or future military service. Military service does not have to be the only reason for the decision. If it was a motivating factor, the employer generally must prove that it would have made the same decision even without the employee’s military status or obligations.

Second, an eligible employee returning from military service may have the right to return to the position the employee would have reached had civilian employment continued without interruption. This is what is commonly known as USERRA’s “escalator principle.”  

Those are related protections, but they answer different questions. One asks whether the employer discriminated against the servicemember because of military service. The other asks where the employee’s civilian career would probably have been if military duty had not interrupted it.

Can a Civilian Employer Deny Promotions Due to an Employee’s Military Service?

A civilian employer cannot deny a promotion because an employee serves in the military, performed military service, or is expected to perform future protected service.

As an example, Company A generally cannot treat Edwin Employee as less promotable because Reserve drills, training, deployment, or other military obligations sometimes take him away from work.

But employers can still make legitimate competitive promotion decisions. An employer may select another candidate who has stronger qualifications, better documented performance, required credentials, or other lawful advantages unrelated to military service. That is the critical distinction: unrelated to military service. 

That means the primary question is whether the employee’s military service influenced the decision. If military service was a motivating factor, simply identifying another legitimate consideration may not end the USERRA analysis. The employer generally must show that it would have reached the same result without the military factor.

The “Escalator Principle” and Promotions After Deployment

USERRA’s escalator principle asks where an eligible returning servicemember likely would have been in the civilian workplace if military service had not interrupted the employee’s career.

Suppose Edwin Employee leaves for military service at Rank 1. While Edwin is away, similarly situated employees, like Colin Colleague, routinely advance to Rank 2 after completing the same amount of time with the company. If Edwin had, like Colin, reached Rank 2 with reasonable certainty, and the only difference was the lapse in time due to military service, USERRA may require the employer to reemploy Edwin at Rank 2 rather than simply placing Edwin at Rank 1, where he started.

This is generally how the rule behaves but can become much more complicated when a promotion depends on testing, qualifications, performance, or management judgment.

Let’s change the facts. Suppose Colin Colleague was promoted to a merit-based or competitive promotion, meaning that he was promoted due to his performance on a large project that was assigned to him and he successfully completed during Edwin’s deployment. What happens then? Well, that depends. 

Merit-based promotions are not automatically excluded from USERRA simply because the promotion was not guaranteed and unrelated to military service. Federal regulations specifically address employees who miss promotional examinations while serving. In appropriate circumstances, a returning employee may receive a makeup opportunity and a retroactive promotion if the evidence shows that the promotion would have occurred with reasonable certainty.

But, at the same time, USERRA does not automatically entitle an employee to every promotion coworkers received while that employee was serving. A highly competitive promotion may involve too many uncertain factors to establish that the servicemember would actually have received it.

The question is therefore not simply whether a promotion was “automatic” or “based on merit.” The question is what most likely would have happened if military service had not interrupted the employee’s civilian career.

The escalator can also move downward. If a legitimate layoff, restructuring, or other workplace event would have affected the employee even if the employee had remained continuously at work, USERRA generally does not place the returning employee in a better position merely because the employee performed military service.

Signs of an Unlawful Denial of a Promotion

Possible signs that military service influenced a promotion decision include:

• Comments expressing frustration or hostility toward an employee’s military obligations
• Statements suggesting that military duties make the employee unreliable or unavailable
• Excluding an employee from consideration because the employee is deployed or attending military training
• Close timing between military service and an unfavorable promotion decision
• Inconsistent or changing explanations for why the employee was not promoted
• Treating employees without military obligations more favorably in similar circumstances
• Ignoring normal promotion, testing, interview, or evaluation procedures
• Holding protected military absences against the employee when judging performance or availability

No single fact necessarily proves discrimination. Courts may consider the surrounding circumstances to determine whether military service actually influenced the employment decision.

An employer also cannot necessarily insulate itself from liability by having an unbiased person make the final decision if another supervisor’s antimilitary bias improperly influenced that decision.

Lawful Reasons Civilian Employers May Deny Promotions

USERRA does not prevent employers from applying legitimate promotion standards.

An employer may lawfully select another employee because that candidate has stronger experience, qualifications, education, certifications, performance, or other job-related advantages unrelated to military service.

A genuine restructuring or reduction in force can also affect promotion opportunities.

But the employer cannot disguise military discrimination as a legitimate employment reason. For example, an employer should not penalize an employee for poor “availability” when the availability problem is simply the employee’s protected military duty.

Similarly, an employer should be careful about relying on lost productivity, missed assignments, or gaps in performance data when those gaps were created by military service itself.

If military service was a motivating factor in the decision, the employer generally must prove that it would have made the same promotion decision even if the employee had no protected military status or obligation.

For an employee returning from military service, there may also be a separate question about whether the employee should have returned at a higher position under USERRA’s escalator principle.

Contact Our Military Employment Attorneys Today

When you believe that an employer denied you a promotion because of military service, determining whether USERRA was violated may require looking closely at the promotion process, the employer’s explanation, how comparable employees were treated, and what opportunities you likely would have had if military service had not interrupted your civilian employment.

Contact Patriots Law Group today for a confidential consultation with a military employment lawyer to learn more about your protections under USERRA.