Monroe v. Standard Oil Co., 452 U.S. 549 (1981)

Author: Justice Burger

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Monroe v. Standard Oil Co., 452 U.S. 549 (1981)


The Court today unduly restricts the employment protections accorded Ready Reservists and National Guardsmen by Congress. In my view, the Court’s decision is based upon an erroneous interpretation of 38 U.S.C. § 2021(b)(3) and, in effect, allows employees to be penalized for their service in the military, contrary to congressional intent.



As in any case involving statutory construction, "our starting point must be the language employed by Congress." Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979). Title 38 U.S.C. § 2021(a) requires that a veteran returning to civilian employment after military duty be restored to the position he previously held or to "a position of like seniority, status, and pay." In addition, 38 U.S.C. § 2021(b)(1) provides that the veteran’s reinstatement must be "without loss of seniority," and that he "shall not be discharged from such position without cause within one year after such restoration or reemployment." See Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 284-285 (1949). Similar safeguards are granted in 38 U.S.C. § 2024 (c) to members of "a Reserve component of the Armed Forces" who have military obligations lasting more than three months. As to reservists whose commitments are less than three months, 38 U.S.C. § 2024(d) provides in pertinent part:

Any employee . . . shall upon request be granted a leave of absence by such person’s employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States. Upon such employee’s release from a period of such active duty for training or inactive duty training, or upon such employee’s discharge from hospitalization incident to that training, such employee shall be permitted to return to such employee’s position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes.

Additional guarantees for reservists are contained in 38 U.S.C. § 2021(b)(3), on which petitioner bases his claim for nonconflicting work hours. Section 2021(b)(3) states:

Any person who [is employed by the Federal Government, a state government, or a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.

(Emphasis added.) The Court concludes that

§ 2021(b)(3) was enacted for the . . . limited purpose of protecting the employee reservist against discriminations like discharge and demotion, motivated solely by reserve status.

Ante at 559. Yet the plain language of the statute belies such a narrow interpretation. Although § 2021(b)(3) proscribes the termination of a reservist because of his military obligations, it also expressly prohibits the denial of "any promotion or other incident or advantage of employment." Such protection is clearly broader than that enjoyed by returning veterans under § 2021(b)(1), but is understandable because the reservist has continuing military commitments requiring his absence that may disadvantage him in his employment.


Just as the language of § 2021(b)(3) does not demonstrate a congressional intent to confine the statute’s application to "discriminations like discharge and demotion," neither does the legislative history. When the bill, H.R. 11509, 89th Cong., 1st Sess. (1965), that included what eventually became 38 U.S.C. § 2021(b)(3) was first introduced, Subcommittee No. 3 of the House Committee on Armed Services held hearings and the full Committee thereafter reported favorably on the bill. The Committee’s Report, which reflected the hearing testimony of Hugh W. Bradley, Director of the Office of Veterans’ Reemployment Rights of the Department of Labor, stated:

Employment practices which disadvantage employees with Reserve obligations have become an increasing problem in recent years. Paragraph 1 of the bill will protect members of the Reserve components of the Armed Forces, including the National Guard, from such practices. It is designed to enable reservists and guardsmen who leave their jobs to perform training in the Armed Forces to retain their employment and to enjoy all of the employment opportunities and benefits accorded their coworkers who do not . . . have a Reserve obligation.

It assures that these reservists will be entitled to the same treatment afforded their coworkers without such military obligations. . . .

The law does not now protect these reservists against discharge without cause as it does with inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months’ protection.

To give the reservist a specific period of protection after each tour of training duty would be to perpetuate him in his position indefinitely. The new section . . . would not follow this approach, but instead provides that an employee shall not be denied retention in his employment or any promotion or other incident or advantage of employment solely because of any obligation as a member of a Reserve component of the Armed Forces.

* * * *

If these young men are essential to our national defense, then certainly our Government and employers have a moral obligation to see that their economic wellbeing is disrupted to the minimum extent possible.

H.R.Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966) (emphasis added). Although the bill was passed by the House, 112 Cong.Rec. 5017 (1966), the Senate took no action on the measure during the 89th Congress.

The bill was reintroduced in the 90th Congress. H.R. 1093, 90th Cong., 1st Sess. (1967); S. 2561, 90th Cong., 1st Sess. (1967). Hearings again were held before Subcommittee No. 3 of the House Committee on Armed Services, at which a statement expressing the view of the American Legion was entered on the record:

The American Legion feels very strongly that employees with reserve obligations who are members of the National Guard and the Reserves . . . should be afforded all the employment opportunities and benefits as those who do not have training obligations. . . .

[The new section] would prevent discharge from employment without cause because of membership in the National Guard or Reserves, and would also prevent discrimination in such areas as promotion, training opportunities and pay increases.

Hearings on H.R. 1093 before Subcommittee No. 3 of the House Committee on Armed Services, 90th Cong., 1st Sess., 7477 (1968) (emphasis added). Noting that protection of "reservists and guardsmen from being disadvantaged in employment because of their military obligations" was one of the purposes of the bill, the full Committee’s favorable Report explained that

[s]ection (1) amplifies existing law to make clear that reservists not on active duty, who have a remaining Reserve obligation, whether acquired voluntarily or involuntarily, will nonetheless not be discriminated against by their employees [sic] soley [sic] because of such Reserve affiliation.

H.R.Rep. No. 1303, 90th Cong., 2d Sess., 3 (1968) (emphasis added).

Following passage of the bill by the House, 114 Cong.Rec. 11779 (1968), the Senate Committee on Armed Services held hearings and issued a Report recommending enactment. The Report repeated the themes which run through every congressional expression on the statutory proposal:

This bill is intended . . . to prevent reservists and National Guardsmen not on active duty who must attend weekly drills or summer training from being discriminated against in employment because of their Reserve membership. . . .

* * * *

Employment practices that discriminate against employees with Reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training, and others have been discharged because of these obligations. Section 1 of the bill is intended to protect members of the Reserve components of the Armed Forces from such practices. It provides that these reservists will be entitled to the same treatment afforded their coworkers not having such military obligations by requiring that employees with Reserve obligations

shall not be denied retention in employment or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces of the United States.

S.Rep. No. 1477, 90th Cong., 2d Sess., 1-2 (198). The bill passed the Senate, 114 Cong.Rec. 2401 (1968), and became law on August 17, 1968. Pub.L. 90-491, 82 Stat. 790.

The legislative history of § 2021(b)(3) admittedly reveals an intent to protect reservists from discharge because of their short-term absences, just as §§ 2021(b)(1) and 2024(c) safeguard returning veterans and reservists who are absent for more than three months. Yet the legislative history also indicates a more expansive congressional purpose of ensuring that reservists are not deprived of any employment benefit solely because of their willingness to serve their country.


The benefit at issue here is the opportunity to work a full 40-hour week. Both the District Court and the Court of Appeals concluded that being scheduled to work 40 hours per week is an "incident or advantage" of employment established by the custom and practice at respondent’s refinery. 446 F.Supp. 616, 619 (ND Ohio 1978); 613 F.2d 641, 645 (CA6 1980). Petitioner was treated no different from other employees in terms of work scheduling, and he was given the right to exchange shifts with willing fellow employees pursuant to the collective bargaining agreement. Nevertheless, during those weeks when his scheduled work hours conflicted with his military commitments and he was unable to arrange an exchange of shifts, the opportunity granted him to work a full 40 hours was illusory, since respondent "took no steps to provide [him] with substituted hours." App. 26. Thus, petitioner asserts that respondent violated 38 U.S.C. § 2021(b)(3) by refusing to rearrange his work schedule to allow him to work 40 hours during those weeks when his military obligations otherwise precluded him from doing so. I agree.

The Court inaccurately characterizes petitioner’s claim as seeking "work-schedule preferences not available to other employees."Ante at 560. Respondent’s policy is not to readjust the work schedule to accommodate absences for personal reasons, and petitioner alleges no right to special consideration regarding absences unrelated to military service. But if petitioner is to be placed on an equal footing with his coworkers, his military absences cannot be treated simply as personal leaves of absence. See Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1024, 1027 (CA1 1979), cert. denied, 446 U.S. 913 (1980); Lott v. Goodyear Aerospace Corp., 395 F.Supp. 866, 869-870 (ND Ohio 1975). A reservist’s absences for training result from obligations vital to our national defense that other employees have not assumed, and the primary purpose of the reemployment rights statutes is to protect reservists against disadvantages in employment caused by these obligations. Indeed, the essence of the statutory guarantees provided by Congress is that employers must give special treatment to the military absences of veterans and reservists.

The Court emphasizes that "respondent did not deny the petitioner anything that he would have received had he not been a reservist" since he was scheduled for 40 hours of work per week, was assigned the same burden of weekend and shift work as other employees, and was allowed to exchange shifts. Ante at 565. In substance, the Court embraces the Court of Appeals’ holding that § 2021(b)(3) "merely requires that reservists be treated equally or neutrally with their fellow employees without military obligations." 613 F.2d at 646. However, unless the statute is read as safeguarding reservists from the adverse effects of facially neutral rules, much of its practical significance is lost. As the United States Court of Appeals for the Fifth Circuit observed in West v. Safeway Stores, Inc., 609 F.2d 147, 149 (1980):

The essence of reserve duty in this context is absence from work. If employers could . . . require that workers be present in order to receive certain benefits, then reservists could never secure the benefits or advantages of employment which the Act was designed to protect.

See also Carney v. Cummins Engine Co., 602 F.2d 763 (CA7 1979), cert. denied, 444 U.S. 1073 (1980) .

Petitioner is not attempting to gain an advantage over his coworkers as a result of his reserve membership. He does not assert a right to be paid for hours he does not work, but asks only that he be given the same meaningful chance as other employees without military commitments to work full time in order to earn a living wage. Moreover, the record contains no evidence that it would be unduly burdensome for respondent, if given adequate notice, to accommodate petitioner’s weekend military commitments in scheduling his work hours. In fact. counsel for respondent acknowledged at oral argument that petitioner

could be scheduled with the number of . . . Saturdays and Sundays off to accommodate his reserve obligation, without requiring any other employee in the plant to work any more Saturdays and Sundays than they now have to work under the regular routine.

Tr. of Oral Arg. 27. See also App. 41-43 (proposed revision of work schedule) .

The Court states that one of the flaws in petitioner’s argument is that

there is no principled way of distinguishing between an employer’s obligation to make scheduling accommodations for weekends, as opposed to, for example, annual 2-week training periods or even longer periods of training or duty.

Ante at 563. However, petitioner does not claim a right to make up hours, only to work full time during those weeks when he is available to work 40 hours apart from his reserve duties. Far from asking respondent to do the impossible, petitioner contends only that "reasonable steps" must be taken to accommodate him. Brief for Petitioner 24. Yet it is undisputed that respondent made no effort to do so. See App. 26. Cf. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). I cannot accept the Court’s conclusion that such total indifference is in keeping with the underlying purposes and express guarantees of § 2021(b)(3).

The Court’s suggestion that respondent need go no further than the requirements of 38 U.S.C. § 2024(d) in accommodating petitioner -- i.e., he must simply be provided "a leave of absence," ante at 564 -- ignores the separate, broader protections of § 2021(b)(3), which was enacted because § 2024(d) was found to be inadequate. In the Court’s view,

[i]f Congress had wanted to impose an additional obligation upon employers, guaranteeing that employee reservists have the opportunity to work the same number of hours, or earn the same amount of pay that they would have earned without absences attributable to military reserve duties, it could have done so expressly.

Ante at 564. But it was respondent that conferred on its employees the benefit of 40 hours of work per week, and Congress has provided unequivocally that such a benefit cannot be refused a reservist, as it was here, solely because of his military commitments. The plain language of § 2021(b)(3) does not differentiate among employment benefits, but

makes it . . . explicit that a reservist or guardsman cannot be . . . denied any promotion or other employment benefit or advantage, because of any obligation arising out of his membership in the reserves [or Guard], or because of his absences from work that result from such obligation.

U.S. Dept. of Labor, Office of Veterans’ Reemployment Rights, Veterans’ Reemployment Rights Handbook 114-115 (1970) (emphasis added).


We have held that the reemployment rights statutes are "to be liberally construed for the benefit of those who . . . serve their country." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946). Accord, Coy v. Republic Steel Corp., 447 U.S. 191, 196 (1980); Alabama Power Co. v. Davis, 431 U.S. 581, 584 (1977). It is unfortunate, I think, that the Court’s decision today undermines that sound principle. The clear purpose of Congress in enacting § 2021(b)(3) was to expand employment safeguards for reservists and thereby encourage participation in the Ready Reserves and the National Guard so as to strengthen our national defense effort without increased reliance on active duty personnel through mandatory military service. Yet that aim is severely frustrated if employers can deprive reservists of "an incident or advantage of employment" as important as the opportunity for full-time work undiminished by weekend absences for military training. Congress surely did not intend that petitioner be put to the choice of quitting the Reserves or forgoing the chance to earn the same wages as other employees who do not have military obligations. Section 2021(b)(3) was enacted to prevent the very type of disadvantage that petitioner has suffered. Accordingly, I would reverse the judgment of the Court of Appeals.


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Chicago: Burger, "Burger, J., Dissenting," Monroe v. Standard Oil Co., 452 U.S. 549 (1981) in 452 U.S. 549 452 U.S. 567–452 U.S. 575. Original Sources, accessed March 23, 2023,

MLA: Burger. "Burger, J., Dissenting." Monroe v. Standard Oil Co., 452 U.S. 549 (1981), in 452 U.S. 549, pp. 452 U.S. 567–452 U.S. 575. Original Sources. 23 Mar. 2023.

Harvard: Burger, 'Burger, J., Dissenting' in Monroe v. Standard Oil Co., 452 U.S. 549 (1981). cited in 1981, 452 U.S. 549, pp.452 U.S. 567–452 U.S. 575. Original Sources, retrieved 23 March 2023, from