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The Legal Background
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that prohibits employment discrimination against a person who is a member of or has an obligation to perform service in a uniformed service.
The statute’s HR implications are very similar to Title VII, which prohibits employment discrimination “because of race, color, religion, sex, or national origin”. Under both statutes, the motive of the manager or supervisor making adverse employment decision is the central focus.
The issue in the new case discussed below is whether the quantum of the motivating factor in the employer’s decision to terminate presented a viable case. Prior to this case, the plaintiff (Staub) would have had to prove that the decision maker (Buck) herself either had anti-military bias or that she was singularly influenced by a biased individual or acting as an instrument of the biased individual so that the anti-military bias was the singular motivating factor causing the adverse employment action (firing). This new case development lowers the standard for what is required.
The New Development
The facts were as follows. Vincent Staub sued Proctor Hospital after he was fired. Staub, who was a member of the United States Army Reserve, claimed that the hospital’s reasons for terminating him were fabricated by his supervisors due to their disdain for his military status and the consequent discrimination.
As an Army Reservist, Staub was required to report for military duty one weekend each month and two weeks during the summer. Over time, his supervisor, Mulally, purportedly began to show hostility toward his military obligations. There was also evidence that the head of the department, Korenchuck, made derogatory comments about his military service.
Staub had been counseled for his problems — attitude, professionalism and his ability to work well with others — at work. After an incident in January 2004, he was issued a written warning requiring him to remain in his work area and not leave without permission from his supervisor or the department head. In April, 2004, one of Staub’s co-workers complained to Linda Buck, Proctor’s vice president of human resources, and Garrett McGowan, Proctor’s chief operating officer, about Staub’s frequent unavailability and abruptness. Three weeks later Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of the January Corrective Action.
Staub explained to the vice president of human resources that he had left a message on Korenchuk’s voicemail that he was going to lunch. Buck apparently did not investigate this assertion but rather relied on Korenchuk’s accusation, and after reviewing Staub’s personnel file, she decided to fire him.
Staub sued. The case went to trial and a jury returned a verdict in his favor. (Staub v. Proctor Hospital, 560 F.3d 647 7th Cir. 2009) On appeal, the 7th Circuit overturned the jury verdict and held that the trial court erroneously admitted evidence of bias from a non- decision maker (Mulally) without first deciding if there was evidence of a singular influence on the decision maker (Buck).
Staub appealed and the U.S. Supreme Court granted review. The Supreme Court ruled that the 7th Circuit Court’s interpretation was too narrow and that the employer may be liable as long as there is a causal connection between the tainted information in Staub’s file and the adverse employment decision. Singular influence need not be shown. Because his two immediate supervisors were biased, there is a sufficient causal connection between the information they put into Staub’s personnel file and his termination.
By failing to investigate Staub’s supervisors’ military animus, Buck failed to break the causal connection between the reprimand for insubordination and Staub’s firing. Therefore it was determined that the tainted evidence was likely a proximate cause influencing her decision. Staub was able to prove that it was likely that the reprimand was put in the file to cause him to be fired and that if the discriminatory reprimand had not been considered, the hospital would not have had cause to fire him.
Lesson for Employers
The Supreme Court’s ruling extends the employer’s liability if a biased individual provided any information to the decision maker.
To reduce risk of a “Cat’s Paw” type claim, Employers should take action on any allegations of discrimination/retaliation by fully investigating each accusation, especially prior to making any adverse decisions about the employee. Additionally, when possible, document the process used to negate the potentially tainted information.
Here are a few things you can do to get started:
1. Develop a company-wide policy and plan for dealing with all types of discrimination/retaliation. Take steps to ensure that all employees and managers are aware of the policy – conduct annual trainings. Consider applying minimum requirements for an investigation and making documented investigations mandatory no matter the initial apparent lightness of the complaint. Other requirements might include reviewing relevant documentary information and speaking with all relevant employees including the alleged victim, the supervisor(s), close coworkers and any potential witnesses of the discrimination/discriminatory behavior.
2. When in doubt, remove any possibly tainted information from the decision, expressly document the non-consideration, and ensure there is evidence that the adverse action (in this case termination) can stand on its own without considering the tainted information. Follow your plan in every case of alleged discrimination/retaliation regardless of your personal belief about whether or not the accusation has merit.
3. Document each step of your process and your reasons for either including or excluding the information. In court, a decision maker has to be able to testify that the decision was made free from influence by any factors contributed by the biased supervisor.
4. Train supervisors to ensure that they are aware of anti-discrimination/retaliation statutes. Be certain they understand their role and provide resources for supervisors to get support in the event that they find themselves dealing with a potential issue.
5. Require that all performance related issues are documented and keep detailed records of all efforts to counsel the employee.
Do not wait until a problem arises to put your process in place. Ensuring that you are prepared to respond to employment issues now will save you time, money and headaches in the long run. It will also allow you to create a system that is proactive and well thought out rather than reactive. When in doubt solicit advice from a knowledgeable consultant or your business attorney.