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Total Articles: 8

Off-the-Cuff Remarks May Create Questions of Fact in Discrimination Cases

In Thompson v. ABVI Goodwill Services, 2013 U.S. App. LEXIS 18680 (2nd Cir., Sept. 9, 2013, unpublished decision), the Second Circuit upheld the District Court’s dismissal of an age discrimination case. The court held that the plaintiff’s supervisor’s comments indicating the plaintiff should “retire” were insufficient to raise an inference of discrimination as it was but one comment, and separated by 20 months from the plaintiff’s termination. Likewise, comments as to where the plaintiff “should work” were ignored by the court, as they contained no age related reference.

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?


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.

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 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.

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 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...."
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