C.F.R. » Title 20 » CHAPTER IX—OFFICE OF THE ASSISTANT SECRETARY FOR VETERANS' EMPLOYMENT AND TRAINING SERVICE, DEPARTMENT OF LABOR › PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 › Subpart B—Anti-Discrimination and Anti-Retaliation

20 C.F.R. § 1002.22

Who has the burden of proving discrimination or retaliation in violation of USERRA?

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The individual has the burden of proving that a status or activity protected by USERRA was one of the reasons that the employer took action against him or her, in order to establish that the action was discrimination or retaliation in violation of USERRA. If the individual succeeds in proving that the status or activity protected by USERRA was one of the reasons the employer took action against him or her, the employer has the burden to prove the affirmative defense that it would have taken the action anyway.

Notes of Decisions
Cited in 16 cases (4 in the last 5 years), 2006–2025 · leading case: Joel Bradberry v. Jefferson Cnty., Texas, 732 F.3d 540 (5th Cir. 2013).
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Joel Bradberry v. Jefferson Cnty., Texas, 732 F.3d 540 (5th Cir. 2013). · cites it 2× “20 C.F.R. § 1002.22 . The employer, though, is not liable under USER-RA if it “can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service.”
Cheryl P. Francis v. Booz, Allen & Hamilton, Inc., Reserve Officers Ass'n, Amicus Supporting, 452 F.3d 299 (4th Cir. 2006). “20 C.F.R. § 1002.22 (2006). Section 4312 imposes no such burden.”
Petty v. Metro. Gov't of Nashville-Davidson Cnty., 538 F.3d 431 (6th Cir. 2008). “Finally, the imposition of § 4311’s discrimination requirement on a reemployment claim is not consistent with the plain language of §§ 4312 and 4313.”
Keslosky v. Borough of Old Forge, 66 F. Supp. 3d 592 (M.D. Penn. 2014). · cites it 2× “2006) (citing 20 C.F.R. § 1002.22 ). a. Keslosky’s Re-Employment-Claim Under Count IV, the following questions of fact remain with respect to Keslosky’s reemployment claim: (1) Whether Keslosky’s re-employment would have imposed an undue hardship on the Borough of Old Forge.”
Starr v. Quicktrip Corp., 655 F. App'x 642 (10th Cir. 2016). “”- 20 C.F.R. § 1002.22 ; see also Coffman, 411 F.”
United States v. Nevada, 817 F. Supp. 2d 1230 (D. Nev. 2011). “2006); 20 C.F.R. §§ 1002.22 -.23. It is undisputed that Ingram engaged in protected conduct by applying for reemployment under USERRA, by filing a complaint with VETS, and by asserting and reserving his rights to reemployment as Chief Deputy.”
Donald Panarello v. State of Rhode Island, Dep't of Corr., 88 A.3d 350 (R.I. 2014). “2013); see also 20 C.F.R. § 1002.22 (2006) (“The individual has the burden of proving that a status or activity protected by USERRA was one of the reasons that the employer took action against him or her, in order to establish that the action was discrimination or retaliation in…”
Brown v. Con-Way Freight, Inc., 891 F. Supp. 2d 912 (N.D. Ill. 2012). “; see 20 C.F.R. § 1002.22 . Under the statute, if a veteran meets certain prerequisites for reemployment that are not in dispute here, the veteran typically is entitled to be reemployed in the position which he would have occupied if his work had not been interrupted by his…”
Cain v. Exxon Mobile Corp. (M.D. La. 2019). · cites it 3× “20 C.F.R. § 1002.22 . The employer, though, is not liable under USERRA if it “can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service.”
Cazares v. City of El Centro (S.D. Cal. 2021). · cites it 2× “1 Here, Plaintiff’s USERRA case, pled as both a discrimination and retaliation claim, 2 fails for four primary reasons: First, the USERRA does not require reasonable 3 accommodation in cases alleging discrimination where the suit involves initial employment 4 as opposed to…”
Gaona v. Wells Fargo Bank (W.D. Tex. 2025). · cites it 2× “2013) (citing 20 C.F.R. § 1002.22 (2006))). Like other federal employment discrimination laws, USERRA employs a “burden-shifting framework.”
Holliday v. Gusman, Sheriff Orleans Par. (E.D. La. 2021). “20 C.F.R. § 1002.22 . The employer, though, is not liable under USERRA if it “can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service.”
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