Time and again, pundits suggest that the U.S. Supreme Court now is among the most conservative in decades and, by extension, pro-business.
If that’s the case, they’re going to be awfully surprised with today’s 8-0 ruling in Staub v. Proctor Hospital (download here) in which the court broadened the methods that an employee can use to prove a discrimination case.
And here’s the kicker: The decision was written by Justice Scalia.
At issue in Staub, is the so-called "Cat’s Paw" theory of discrimination in which the adverse employment action (like a firing) by a "clean" upper-level executive is alleged to have been infected by a lower-level supervisor who had discriminatory animus. I’ve previously discussed that theory in prior posts.
Scalia notes the delicate issues in play, namely whether such influence is a "motivating factor" sufficient to cause an employer to be liable:
The central difficulty in this case is construing the phrase “motivating factor in the employer’s action.” When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in or obligation to a uniformed service, a motivating factor obviously exists. The problem we confront arises when that official has nodiscriminatory animus but is influenced by previous com-pany action that is the product of a like animus in some-one else.
But ultimately, the court dismissed concerns that the court failed to adopt a rule that immunized employers who perform an independent investigation leading to a termination. The court said that because a supervisor is an agent of the employer, the employer should be responsible when that supervisor "causes" an adverse employment action:
We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,3 and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.
But perhaps to satisfy critics, Justice Scalia can’t help but to drop an interesting footnote that suggests that there are limits to such liability. In footnote 4, he notes
Needless to say the employer would be liable only when the supervisor acts within the scope of his employment or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles….We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.
While the case is applied in the context of USERRA (discrimination against some service members), the language is similar to Title VII and thus employers should expect such logic to be applied to those cases too.
For employers nationwide, the case is probably the most significant of this year’s Court term and we can certainly expect to see this theory come up time and again. Employers in Connecticut, however, have had to deal with this theory already so its impact here may be a bit more muted.