If an interviewer expresses doubt about hiring a National Guard member, and the company doesn't hire him, is that a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA)? A court recently considered what it takes to prove such a violation.

What happened. When Chad Easton, a member of the Reserve National Guard, applied for work at Continental Tire North America (CTNA) in Mt. Vernon, CTNA interviewer Don Gass questioned whether his Guard obligations would conflict with his ability to work weekends. But Gass also noted Easton's lack of relevant experience and skills, and told him he didn't think he was right for the job.

The same day, on Gass's recommendation, CTNA did hire Daniel Pearl, another Guard member, who did have the right skills and experience. CTNA also hired several other Guard members after rejecting Easton. Still, Easton assumed that the decision not to hire him was based on his military status. He sued CTNA under USERRA, which bars job discrimination against people in the military services.

What the court said. To prove a USERRA violation, an employee has to show that membership in the military was a motivating factor in the employer's decision. Criteria relevant to this decision include: (1) the proximity in time between the military activity and the employer's action; (2) inconsistencies between the employer's stated reason and its other actions; (3) the employer's hostility toward service members; and (4) disparate treatment.

In this case, Easton's sole evidence was Gass's statements during his interview. The court said that the proximity in time between Easton's military activity and Gass's decision not to hire him might show discriminatory intent, but that would be an unreasonable inference given the rest of CTNA's evidence. On the second factor, the court said that there were no inconsistencies between CTNA's proffered reason--­Easton's lack of experience­and its other actions, such as the hiring of other Guard members. On the third factor, the court said there was no record of expressed hostility by CTNA toward those in the military. On the fourth factor, Easton failed to show preferable treatment of similarly situated individuals. Easton v. Continental Tire North America, U.S. District Court for the Southern District of Illinois, No. 05-CV-4039-JPG (4/17/06).

Point to remember: This employer's meticulous records of the experience of, and its treatment of, other applicants absolved it. Still, the company would have saved a trip through the court system if its interviewer had not expressed doubt about a conflict between military service and weekend work.