Total Articles: 23
Disparate Impact and the Non-Traditional Plaintiff
At the start of the year, I noted that one thing that seemed to be a "trend" was litigation by non-minority plaintiffs. See, 2011 -- the Year of the Non-Minority?
Is the EEOC Setting up Employers for Spoliation Claims?
An office of the U.S. Equal Employment Opportunity Commission has issued a "Document Retention Notice" that appears to be designed to turn meritless cases into spoliation claims. This is another example of how the EEOC has turned itself into a prosecutorial agency with no real pretense of impartiality. Employers need to respond accordingly.
HR Managers: Are You A Cat’s Paw? (You Don’t Want To Be)
What does it mean to hold an employer liable for discrimination under a “cat’s paw” theory of liability? The concept has been addressed in court decisions for a number of years, and recently the U.S. Supreme Court addressed it in a military service discrimination case titled Straub v. Proctor Hospital.
THE CAT’S PAW SWIPES EMPLOYERS
In light of a recent United States Court decision, Staub v. Proctor Hospital, careful employers should consider requiring a review of lower-level managers’ and supervisors’ recommendations to terminate or take other actions against employees. A review allows more responsible managers to detect ill-motivated decisions that could turn into legal claims. Senior managers, uninvolved in the day-to-day supervision of an employee, can lend a degree of objectivity. They also ensure consistent application of company policies. Depending on the level of scrutiny, a second or third-level review can also ensure proper documentation identify “red flags” and assess potential risks.
The Supreme Court Sharpens the Claws of the "Cat's Paw" Theory
In our July 2009 newsletter, we highlighted then- recent decisions evaluating the “cat’s paw” theory of liability in discrimination cases. Under that theory, an employer can be liable for discrimination where the supervisor who harbored discriminatory animus towards the plaintiff influenced an adverse action, but did not in fact make the ultimate
U.S. SUPREME COURT OUTLINES EMPLOYER LIABILITY FOR DISCRIMINATION UNDER “CAT’S PAW” THEORY (pdf)
In a unanimous decision, the U.S. Supreme Court recently ruled that an employer can be held liable for employment discrimination based upon the discriminatory animus of a supervisor who influenced, but did not make, the ultimate employment decision. Staub v. Proctor Hospital, No. 09-400 (S.Ct. March 1, 2011). The case is an important one for employers, who can now be liable for discrimination where the decision-maker who takes the adverse employment action against the employee has no discriminatory animus if he or she is relying upon recommendations of a supervisor who does.
Mrs. Palsgraf and the cat's-paw doctrine
Remember being a 1L, studying about Mrs. Palsgraf and proximate cause in torts and the fruit of the poisonous tree in criminal procedure? I never thought I would see them again, but I was wrong. The ideas popped up the SCOTUS decision in Staub v. Proctor Hospital.
How To Avoid the Dreaded "Cat's Paw" In Light of Staub
Many employers are scratching their heads about last week’s “cat’s paw” decision from the Supreme Court. The Court unanimously held that employers can be liable for decisions that were influenced by managers or supervisors who had unlawful motives. However, the decision was short on advice about how to avoid “cat’s paw” liability.
U.S. Supreme Court Outlines Parameters of “Cat’s Paw” Theory of Liability
On March 1, 2011, the U.S. Supreme Court unanimously held in Staub v. Proctor Hospital (.pdf) that an employer can, in certain circumstances, be held liable for employment discrimination based upon the bias of a supervisor who influenced, but did not make, the ultimate employment decision. The Court struck down a narrow version of this so-called “cat’s paw” argument, under which the employer could be held liable only if the biased supervisor exerted a “singular influence” over the ultimate employment decision. Unfortunately, the Court’s decision provides little guidance for employers as to what steps they can take to avoid liability for “cat’s paw” claims.
Supreme Court Expands Cat's Paw Liability
On March 1, the U.S. Supreme Court unanimously held in Staub v. Proctor Hospital (.pdf) that an employer can be held liable for employment discrimination claims based upon the bias of a supervisor who influenced, but did not make the final employment decision. The Court struck down a narrow version of this so-called “cat’s paw” argument, under which the employer could be held liable only if the biased supervisor exerted a “singular influence” over the ultimate employment decision. It is clear that this ruling will apply broadly to cases including claims of retaliation and interference under the FMLA. Unfortunately, the Court’s decision provides little guidance for employers as to what steps they can take to avoid liability for “cat’s paw” claims.
U.S. Supreme Court rules that the "Cat's Paw" theory can create liability for discrimination.
he U.S. Supreme Court has held, by unanimous opinion, that an employer may be held liable for employment discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on the “discriminatory animus” of an employee who influenced, but did not make, an ultimate employment decision. In interpreting the so-called "cat's paw" theory of liability, the Court declined to adopt the approach suggested by the employer: that a decision-maker's independent investigation and rejection of an employee's allegations of discriminatory animus should negate the effect of any prior discrimination in subsequent actions against that employee. Instead, the Court held 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 a proximate cause of the ultimate employment action, then the employer is liable under USERRA."
Supreme Court Clarifies Cat's Paw Liability in Discrimination Claims
The U.S. Supreme Court has clarified the standards under which an employer can be liable for discrimination under the so-called "cat's paw"[1] theory of liability in a discrimination claim. See Staub v. Proctor Hospital, No. 09-400 (March 1, 2011). The Court held that if a supervisor performs an act motivated by unlawful animus and intends to cause an adverse employment action, the employer is liable if the supervisor's act is a proximate cause of the adverse decision even if the decision maker did not share the supervisor's animus. The decision was issued in a case brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but its holding will likely be applied in cases under Title VII and other discrimination statutes.
Supreme Court Recognizes Cat’s Paw Liability in Army Reservist’s USERRA Discrimination Case
The U.S. Supreme Court has ruled unanimously that employers may be subject to liability in employment discrimination cases even if the ultimate decision to take an adverse employment action was made by a manager who was not biased toward the affected employee.
Supreme Court Holds That Company May Be Liable For The Discriminatory Motives Of Non-Decision Makers
On March 1, 2011, the U.S. Supreme Court held that an employer may be liable for the discriminatory motives of a supervisor who influences but does not make the ultimate employment decision. The Court's ruling will impact employment discrimination claims where multiple individuals are claimed to have made, caused, or influenced the ultimate employment decision.
With a Friend Like Justice Scalia...Cat's Paw Decision Not Very Employer Friendly
Although viewed as one of THE most conservative justices, I am not sure anyone who is very knowledgeable about employment law relishes the idea of Judge Scalia writing the majority opinion in an employment law case. If they did before this term, their view would be strongly challenged by today's decision in Staub v. Proctor (S.Ct. 3.1.11) [pdf] and coupled with his earlier opinion in Thompson v. North American Stainless, should readily disabuse them of that notion.
Inappropriate Comments In the Workplace Cause Problems in the White House.
President Obamas Chief of Staff has caused quite a stir. Reportedly, in a fit of frustration, Rahm Emanuel called participants in a White House meeting f---ing retarded. Sarah Palin, who has a son with Downs Syndrome, quickly spoke out about the inappropriate nature of the comment on Facebook. The statement drew additional attention because this is the second time that a member of the Obama Administration has had to apologize for making an insensitive comment regarding the mentally disabled.
Supreme Court Punts In "Me Too" Case.
The U.S. Supreme Court issued its decision in Sprint/United Management Co. v. Mendelsohn. This case raises the important issue of whether so-called "me too" evidence can be introduced in employment discrimination litigation. The high court failed to answer this question, however, deferring to district courts to evaluate whether the probative value of such evidence outweighs the prejudicial effect.
Supreme Court Holds That "Me Too" Evidence May Be Admissible (pdf).
A recurrent issue in employment discrimination cases is whether me too evidencetestimony by other employees that they have been discriminated against by supervisors who did not make the decision being challenged by the plaintiffcan be introduced to prove discrimination against the plaintiff.
Supreme Court Rules on Me Too Evidence of Discrimination.
The U.S. Supreme Court has held that testimony by non-parties to a lawsuit claiming they were subject to discrimination by individuals other than those accused in the lawsuit is neither per se admissible nor per se inadmissible. See Sprint/United Management Co. v. Mendelsohn (February 26, 2008). In Sprint, the Court held that the relevance and prejudice of this evidence must be determined in the context of the facts and arguments in a particular case.
In this case, Mendelsohn claimed she was chosen for discharge during a reduction in force (RIF) because of her age in violation of the Age Discrimination in Employment Act (ADEA). At trial, she sought to introduce the testimony of other former employees who claimed they were subjected to age discrimination while they were employed by Sprint. However, none of these employees worked in the same business unit as Mendelsohn and none claimed to have been subjected to discrimination by any of the supervisors in Mendelsohns chain of command, including the individual who made the decision to discharge her.
Supreme Court Issues Non-Decision on "Me Too" Evidence.
Today the Supreme Court delivered its opinion in Sprint v. Mendelsohn reinforcing its long standing rule that district courts are afforded wide discretion on evidentiary matters. Practitioners were disappointed that the Court provided little, if any, guidance on the substantive issue before it. Instead the decision focuses more on the deference that appellate courts must give to the decisions of lower federal district courts, and holds only that admission of "me too" evidence is fact based and "depends on many factors...."
Ninth Circuit Decision Imputes Subordinate Employees Unlawful Bias To Employer If Subordinate Influenced Or Was Involved In Decision-Making Process (scroll down).
In Poland v. Chertoff, James Poland, a long-standing employee of the U.S. Customs Service based in Portland, Oregon, complained of age discrimination against his supervisor, Gary Hillberry.
Decisionmakers: Independently Investigate Reports of Employee Misconduct from Lower-Level Managers (pdf).
Reports of employee misconduct from a manager
without authority to impose discipline are considered by some employers to be a risk-free basis for
disciplining the employee. The decisionmaker need
only show that he reasonably believed the managers
report and acted accordingly. Whatever bias may
have prompted the manager to act is not imputed to
the decisionmaker unless he knows of the bias.
Teacher's Bias Claim Based on "Unreliable" Statistical Evidence Rejected.
The Seventh Circuit upheld a ruling in favor of a school district where the plaintiff's expert statistical witness failed to use reliable statistics to show bias.
