Just over a month ago, the Supreme Court unanimously held that an employer violates Title VII of the Civil Rights Act if it takes action against an employee who is in the same “zone of interest” as another employee who complains about unlawful harassment in the workplace.
Yesterday, in an opinion written by Justice Antonin Scalia, the Court in Staub v. Proctor Hospital once again unanimously made it easier for individuals to pursue discrimination claims against their current and former employers. You can read a copy of the Court’s opinion here.
My analysis and the immediate impact this opinion will have on employers after the jump.
Staub’s supervisors were not too keen on his military obligations
Vincent Staub, an angiography technician and a member of the United States Army Reserve, worked for Proctor Hospital. Both his immediate supervisor (Mulally) and Mulally’s supervisor (Korenchuk) did not like that Staub had military obligations.
Mulally gave Staub a disciplinary warning in the form of a Corrective Action. After receiving a report from Korenchuk that Staub had violated the Corrective Action, Proctor’s vice president of human resources (Buck) reviewed Staub’s personnel file and decided to fire him.
Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which forbids an employer to deny “employment, reemployment, retention in employment, promotion, or any benefit of employment” based on a person’s “membership” in or “obligation to perform service in a uniformed service,” 38 U. S. C. §4311(a), and provides that liability is established “if the person’s membership . . . is a motivating factor in the employer’s action,” §4311(c).
Notably, Staub did not contend that hostility to his military obligations motivated Buck. Rather, Staub alleged that Mulally and Korenchuk were, and that their actions influenced Buck’s decision. This is what is known as the “Cat’s Paw” theory.
The Third Circuit (which covers PA, NJ, DE and USVI) has remained largely silent on this issue, with its clearest pronouncement coming in Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 286 (3d Cir. 2001). In Abramson, the Third Circuit held the plaintiff’s employer liable for the discriminatory animus of two of the plaintiff’s supervisors, even though the supervisors did not make the actual decision to deny the plaintiff tenure.
The U.S. Supreme Court holds that the ultimate decisionmaker’s motives
don’t matter if another supervisor’s discrimination motivates the firing.
If a supervisor performs an act motivated by anti-military animus that the supervisor intends to cause an adverse employment action, and if that act helps get the employee fired, then the employer is liable under USERRA. According to the Supreme Court, this was precisely the case in Staub.
Animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub’s supervisors) if the adverse action is the intended consequence of that agent’s discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only “some direct relation between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that are too remote, purely contingent, or indirect.”
The Court rejected Proctor’s argument that a decisionmaker’s independent investigation, and rejection, of an employee’s discriminatory animus allegations should negate the prior discrimination:
Proctor’s view would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision
to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be
effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That seems to us an implausible meaning of the text, and one that is not compelled by its words.
Applying this analysis here, both Mulally and Korenchuk acted within the scope of their employment when they took the actions that allegedly caused Buck to fire Staub. There was also evidence that their actions were motivated by hostility toward Staub’s military obligations, and that those actions were causal factors underlying Buck’s decision. Finally, there was evidence that both Mulally and Korenchuk had the specific intent to cause Staub’s termination.
The immediate impact on employers.
So what does this decision mean for employers? I’ll give you three takeaways:
- Supervisor discrimination + Firing (by anyone else) = Deep sh*t for you. There is no two ways around it. If a supervisor’s discrimination in any way motivates an adverse employment action, an employer will get tagged. A supervisor is an agent of the employer. When, in the scope the supervisor’s employment, he causes an adverse employment action, the employer causes it. And when discrimination is a motivating factor in his doing so, it is a motivating factor in the employer’s action.
- This opinion will be broadly applied. Just because this is a USERRA case, doesn’t limit its application only to USERRA cases going forward. In the opinion, Justice Scalia noted that USERRA’s anti-discrimination language is very similar to Title VII’s. Therefore, expect this to apply in a variety of federal and state anti-discrimination matters. (Although, it may not apply equally to age discrimination where the plaintiff’s burden of proof is more stringent).
- So re-educate your employees how to both identify and complain about unlawful harassment in the workplace. Make sure that all employees have copies of your anti-harassment policy. And then train them on how the policy works. Employees who know how to spot and report unlawful harassment permit their employer to address the issue. That’s a good thing. And it doesn’t necessarily mean more lawsuits. Rather, by addressing the issue early, the employer can take corrective action that is reasonably calculated to end the offending conduct. Such action should appease the complaining employee while reminding the employee that the employer has his/her back. Early action also decreases the chances that unlawful harassment will get to a level such that it may motivate an adverse employment action, as it did in Staub.