Volume 10, Issue 3
March 14, 2011
On March 1, 2011, the U.S. Supreme Court decided that an employer is liable for discrimination when an ultimate employment decision, such as a termination, was influenced by an action of a biased supervisor, even though the employer's unbiased human resources department conducted an independent investigation that resulted in the termination. This decision should prompt all employers to carefully review their procedures for discipline and investigation of workplace matters.
The facts of the case involved Vincent Staub, an Army Reservist, who was required to serve one weekend per month and two weeks during the summer to fulfill his military obligations. His two immediate supervisors were annoyed by Staub's need for leave, referencing the "strain on the department" caused by his absences for reserve duty and wanting "to get rid of" Staub.
One of the supervisors issued Staub a disciplinary warning for violating a purported rule to stay in his work area if not with a patient, and issued a directive for Staub to report to his supervisor once his work was done. Aside from the bias that prompted it, the supervisor's actions were problematic for two additional reasons noted by the Supreme Court: "First, the company rule . . . did not exist; and second, even if it did, Staub did not violate it."
Staub's supervisor later informed HR that Staub had violated her previous directive concerning reporting to his supervisor after work tasks were completed. Staub contended that the violation was false as he had left a voice mail notification. Staub also complained that his supervisor was biased against his reserve duty obligations. The HR person independently reviewed Staub's personnel file and, in reliance upon the supervisor's accusation, decided to terminate Staub for ignoring the prior directive. Even though even Staub agreed the HR person was not biased, a jury found the supervisor's prior biased warning/directive was a factor in the termination and thus found in favor of Staub.
The Supreme Court agreed with the jury verdict in favor of Staub and stated:
"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, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."
In other words, if the actions of a biased supervisor play some role in an ultimate employment decision - even if the decision is made by an unbiased individual - the underlying bias will taint the entire decision making process, creating liability for the employer. At the same time, as the Supreme Court noted, if an employer's investigation results in an adverse decision for reasons unrelated to the underlying biased action, the employer will not be liable.
Even though the Supreme Court's decision involved the non-discrimination provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which protects employees having military obligations, the decision is applicable to most anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964. Besides USERRA, many other employment statutes prohibit taking action where "a motivating factor" is the employer's discriminatory or retaliatory animus. Thus, the Staub decision will be applied to construction of laws other than USERRA, such as cases of racial or sexual discrimination.
In light of the Staub decision, prudent employers should take the following steps when contemplating any type of disciplinary or discharge decision:
- Thoroughly assess every recommended disciplinary action - speak to the employee involved and to the recommending supervisor, and ensure there is both a factual basis for the recommended action and actual policies, standards or rules pertaining to the asserted violation. This is important not only for the currently-contemplated personnel action, as legitimate future decisions will be tainted if based in whole or in part upon prior discriminatory discipline or decisions.
- Require supervisors recommending discipline to substantiate and document their reasoning, and critically examine the supporting data.
- Investigate any complaint of supervisor bias made by an employee.
- Educate supervisors on their legal obligations. There is a clear indication from the Staub opinion that the supervisors in question did not understand that absence for a military obligation is protected and cannot form the basis for employment decisions.
See Staub v. Proctor Hospital, Case No.09-400 (March 1, 2011).
Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.