Here’s something to include in supervisory training sessions: Warn that negative comments about military service may put the employer on the defensive in the event the employee is terminated.
The comments may be used to show anti-military service bias was a motivating factor in the discharge.
Then the employer will have to prove it would have made the same discharge decision anyway. That can be hard to do.
Recent case: Joe, who was in the military reserves, was terminated for alleged mistakes.
But his supervisor had made several comments questioning why he had a second job in the military and whether this meant he wasn’t dedicated to the employer.
The court said the comments showed that anti-military bias may have partly motivated the discharge decision and the employer couldn’t show it would have made the same decision even absent the bias. (Junguzza v. Gemalto, No. 13-4422, ED PA, 2014)