Legislative Update- Discrimination Law Ruling

The United States Supreme Court came to a ruling on March 1, 2011, which declared an employer can be liable for the discriminatory motives of a supervisor who influences but does not make the ultimate employment decision.

The high court toughened the standard by which an employer may be held liable for discrimination based on a subordinate supervisor’s discriminatory view even if the ultimate decision maker is admittedly unbiased.

Justice Scalia delivered the decision that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Justices Roberts, Kennedy, Ginsburg, Breyer and Sotomayor also joined the decision.

The Court decided to decline a blanket rule immunizing an employer who performs an independent investigation of the conduct that led to the adverse employment action. However, they gave a very limited exception to liability where subordinate bias is at play.

This decision creates a new layer of liability for employers in USERRA and other type of discriminatory claims. The employer may be liable for discrimination if the biased motives of a supervisor caused a chain of events that led to the adverse employment action, even if it was not from the ultimate decision maker.

Employers must take a closer look at an employee’s prior conduct and corrective action issued before an adverse employment action is taken. The company should create an independent investigation to confirm there is legitimate and non-discriminatory reasons before an adverse employment action is taken.

Staub v. Proctor Hospital
Vincent Staub was in the Army Reserves and worked at Proctor Hospital as an angiography technologist. His two superiors Michael Korenchuk and Janice Mulally began to set up timing obstacles that would conflict with his Army Reserve responsibilities and punish him for not meeting them.

Shortly after Staub received his order to report for “solider readiness processing”, a precursor to active deployment, Mulally gave him a written warning for disregarding his job duties. Staub was instructed to report when he had completed his angiographic duties and did not have any patients and was to remain in the general diagnostic area unless he told Korenchuk or Mulally where he was going and why.

A few months later, Staub was finished with his work and tried to go to lunch. He was unable to find Korenchuk in his office so he left a voicemail message. When Staub returned 30 minutes later, Korenchuk escorted him to the Vice President of Human Resources, Linda Buck, where she proceeded to terminate him.

Prior to deciding to terminate Staub, Buck reviewed his personnel file. She also relied on input from Korenchuk but the ultimate decision was hers. Staub’s military involvement played no role in Buck’s decision.