Military Status Discrimination Laws in Washington

The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq., is the primary federal statute protecting military service members and veterans from employment discrimination. USERRA applies to all employers regardless of size, including private employers, state and local governments, and federal agencies. The law prohibits discrimination against employees because of their uniformed service or membership in the National Guard or military reserves.

USERRA's core protections include: (1) protection against discrimination in hiring, firing, advancement, compensation, job training, and other terms and conditions of employment based on military service; (2) the right to be reemployed by your pre-service employer with the same seniority and benefits you would have had absent military service; and (3) protection against retaliation for asserting USERRA rights.

The law covers all uniformed services: the Army, Navy, Air Force, Marine Corps, Coast Guard, and their reserve components, including the National Guard and military reserve. USERRA applies to active duty, active duty for training, inactive duty training, and initial active duty for training. The Department of Labor's Veterans Employment and Training Service (VETS) enforces USERRA. Remedies available under USERRA include reinstatement, back pay with interest, restoration of benefits, compensatory damages for lost wages and benefits, and in some cases, punitive damages up to $300,000 for willful violations. An employee may pursue USERRA claims in federal court or seek administrative review through the Department of Labor.

Washington State law provides robust protections against military discrimination that in many respects parallel and complement federal USERRA protections. RCW 49.60.180 explicitly prohibits discrimination in employment based on military status, which includes current service in the armed forces, National Guard, or military reserves, as well as veteran status. This statute applies to all employers in Washington with eight or more employees, including private employers, state and local government agencies, and quasi-public entities.

Washington's military discrimination statute is notably broader in scope than the minimum required by federal law in several respects. First, it protects not only employees called to active duty but also those in reserve status or National Guard duty, whether or not actual service time is involved. Second, Washington law covers both discrimination based on military service itself and discrimination based on beliefs, practices, or observances associated with military service or service-related status. Third, the statute explicitly prohibits retaliation in RCW 49.60.210, which makes it unlawful for an employer to discharge, threaten, discriminate against, or in any other manner retaliate against an employee for filing a complaint or participating in an investigation under the military discrimination statute.

Washington's statute is enforced by the Washington Human Rights Commission (WHRC), which operates as a dual-filing agency with the federal EEOC under a worksharing agreement. This means when you file with the WHRC, your charge is automatically cross-filed with the EEOC, and vice versa. The state statute provides remedies including compensatory damages for emotional distress and lost wages, reinstatement, back pay with interest, restoration of benefits, reasonable attorney fees and costs, and civil penalties. Washington law does not cap damages, unlike some other discrimination statutes. Additionally, Washington employees may pursue claims under both RCW 49.60.180 and federal USERRA simultaneously, allowing recovery under both regimes if applicable.

Filing deadline: 90 days from the discriminatory act to file with the Washington Human Rights Commission (compared to 180–300 days under federal EEOC filing rules, depending on deferral state status).

Employer size: Washington military discrimination law applies to employers with 8 or more employees (federal USERRA has no employee size threshold and applies to all employers).

Reemployment timeline under USERRA: Service member must report back to pre-service employer within a specified period depending on length of service: up to 5 days for service of up to 30 days; up to 14 days for service of 31–180 days; up to 90 days for service of more than 180 days.

USERRA statute of limitations: Five years from the date of the alleged violation.

Several important exceptions and limitations apply to Washington military discrimination law and federal USERRA protections.

First, the employer defenses under USERRA include business necessity and undue hardship. An employer may refuse reemployment or take adverse action if the service member's military service has caused a permanent, incurable diminution of ability to perform the essential functions of the job, even with reasonable accommodation. However, this defense is narrowly construed and requires objective medical evidence of permanent disability. An employer may also argue undue hardship if reemployment would impose significant difficulty or expense, but again, the burden is on the employer, and courts interpret this exception strictly.

Second, military discrimination protections do not override legitimate, non-discriminatory business reasons for adverse employment actions. If an employer can demonstrate that it would have made the same decision regardless of the employee's military service (the "same decision defense"), the employer may avoid liability. However, the employee's military service cannot be a motivating factor in the decision.

Third, USERRA and Washington law do not require employers to provide paid military leave; they only protect the employee's job. An employer may require an employee to use accrued paid time off during military service, though some states prohibit this.

Fourth, the 90-day filing deadline under Washington law is a strict jurisdictional requirement. Filing after 90 days bars the claim entirely unless the statute of limitations has been extended by some other legal theory. Additionally, federal employees are excluded from USERRA's protections and instead are covered under federal employee military leave laws (5 U.S.C. § 6323).

Fifth, Washington's 8-employee threshold means employers with fewer than 8 employees are not covered by the state statute, though they may still be subject to USERRA if they meet USERRA's broader applicability requirements. Finally, independent contractors and volunteers are generally not protected under these statutes; the individual must be a statutory employee.

Step 1: Document Everything. Immediately begin documenting all incidents of discriminatory treatment or retaliation related to your military service. Create a written record that includes: the date, time, and location of each incident; what was said or done; who was present (names and titles); the business context; and your response. Save all relevant emails, text messages, performance reviews, disciplinary notices, and any written communications that reference your military service or that you believe are pretextual. Keep copies of your job description, offer letter, and any military leave request approvals. Photograph or scan documents if you lack digital copies. Create a separate file outside your workplace (personal email, personal cloud storage, or printed hard copies) to preserve evidence safely.

Step 2: Internal Complaint and Preservation. Before filing an external charge, consider whether your employer has an internal complaint procedure. Check your employee handbook for a formal complaint or grievance process. File a written complaint with your HR department or supervisor (whoever the handbook designates), describing the discriminatory conduct, dates, and impact. Keep a copy for yourself and send it via email or certified mail to create a time-stamped record. State clearly that you believe you have been discriminated against based on military service and that you are requesting investigation and corrective action. Do not sign any document waiving your legal rights. This internal step matters because it demonstrates good faith and may trigger the employer's legal obligation to investigate, and it establishes an official company record of your complaint. However, do not delay external filing waiting for an internal investigation; pursue external remedies simultaneously if the internal process is slow or appears biased.

Step 3: File with Washington Human Rights Commission (WHRC). You must file your charge within 90 days of the discriminatory act—this is a strict deadline. File online at www.hrc.wa.gov or download the complaint form and mail it to the Washington Human Rights Commission, 711 S. Capitol Way, Suite 402, Olympia, WA 98501. You may also file by phone at (800) 233-3247 or in person. Your charge must include: your name, address, and contact information; the respondent (employer) name and address; dates of the alleged discrimination; a clear description of what happened and how it relates to your military service; names of witnesses; and the specific statute violated (cite RCW 49.60.180). Explain what relief you seek (reinstatement, back pay, damages, attorney fees). You do not need an attorney to file. Upon filing, the WHRC automatically cross-files your charge with the EEOC under the worksharing agreement. The WHRC will issue you a charge number and send the employer a copy of your charge.

Step 4: Investigation Process. After you file, the WHRC assigns an investigator to your case. The WHRC typically has 180 days to investigate, though this can be extended. The investigator will contact you and the employer, request documents, and may interview witnesses. You will likely be asked to provide additional details about the discrimination and any evidence you have. The employer will have an opportunity to respond and provide its own evidence. Respond promptly to all WHRC requests and provide complete information; delays on your part can slow the process. The investigator will determine whether there is "probable cause" that discrimination occurred. If the investigator finds probable cause, the WHRC will attempt to conciliate the claim (negotiate a settlement). If conciliation fails, the WHRC may issue a final determination finding discrimination and awarding damages, or it may close the case. The entire process typically takes 6–12 months.

Step 5: Consult an Attorney. You should consult with an employment attorney specializing in military discrimination or USERRA as soon as possible after the discriminatory incident, ideally before filing your charge. An attorney can help you evaluate the strength of your claim, gather evidence, prepare your charge, and navigate the investigation process. Many employment attorneys work on contingency (no upfront fee; they collect a percentage of any recovery) or offer free initial consultations. Because Washington law provides for attorney fees recovery, a plaintiff's attorney may be willing to take your case at reduced cost. If the WHRC investigation results in probable cause, an attorney becomes especially important because the employer may push for a quick settlement. If you proceed to litigation in state or federal court, an attorney is essential. Look for attorneys certified or experienced in USERRA or military employment discrimination through the Washington State Bar Association (www.wsba.org) or local legal aid societies.