Employment Law: Good Supreme Court Ruling Holding Employer Liable for Discrimination

Again, credit to Jurist for its story coverage, posted below my diatribe.

Another positive and unanimous opinion (the majority opinion, not the concurrence, is clearly much more progressive).  The author of the Opinion of the Court?  Antonin Scalia — go figure.  He does occasionally surprise me.

The Supreme Court upheld the use of what is called “cat’s paw liability,” meaning a company or agency can be deemed liable for discrimination when it relies on the comments of a biased supervisor when taking an adverse employment action against an employee.  As the Supremes stated, taking into recognition the lack of any preexisting principle in tort or agency law:

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.

So, a decision maker’s independent investigation does not per se relieve the employer of fault.

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http://jurist.org/paperchase/2011/03/supreme-court-finds-employmer-liable-in-discrimination-suit.php?

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled[opinion, PDF] unanimously in Staub v. Proctor Hospital [Cornell LII Backgrounder; JURISTreport] that an employer may be held liable for employment discrimination based on discriminatory motivations of a supervisor who influences, but does not necessarily make, the decision to fire an employee. Petitioner Vincent Staub served in the military while working for respondent Proctor Hospital. Staub’s immediate supervisors were hostile to his military obligations which required him to miss work shifts. Staub’s employment was terminated by the vice president of human resources, who was not biased against Staub’s military obligations. Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) [text] for wrongful termination. Proctor Hospital argued that, under the USERRA, an employer is not liable unless the de facto decisionmaker is motivated by discriminatory hostility. The US Court of Appeals for the Seventh Circuitruled [opinion, PDF] that the unlawful intent of the officials who allegedly brought about Staub’s dismissal could not be attributed to the employer on the basis that the vice president of human resources did not rely solely on the discriminatory motivations of Staub’s supervisors in reaching her decision to terminate employment. The Supreme Court reversed, holding that the “cat’s paw” liability doctrine applies in this case:

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.

Given the lack of any principle in tort or agency law, the court says, a decisionmaker’s independent investigation does not per se relieve the employer of fault. Justice Samuel Alito filed a concurring opinion, joined by Justice Clarence Thomas, agreeing with the reversal of the lower court’s decision, but arguing that the reversal should have been based on textual interpretation of the statute rather than on principles of tort and agency law. Justice Elena Kagan did not participate in the decision.

In the majority opinion, Justice Antonin Scalia noted that the language of USERRA is similar to Title VII [text], which prohibits employment discrimination based on race, color, religion, sex or national origin, so the ruling will likely have implications in that context. Both statutes state that discrimination is established when one of those factors “was a motivating factor for any employment practice, even though other factors also motivated the practice.” The Supreme Court has recently ruled on several other Title VII cases. Last month, the court ruled [JURIST report] in Thompson v. North American Stainless [Cornell LII backgrounder] that a third party can sue his employer for retaliation. In June, the court ruled [JURIST report] in Gross v. FBL Financial Services [Cornell LII backgrounder] that the burden is on the plaintiff to prove that age was the determining factor in an age discrimination in employment suit and that a mixed-motive jury instruction is never appropriate in such a case.