March 14, 2011

The crystal ball gets a bit clearer

Posted in Uncategorized at 8:52 pm by Tom Jacobson

In my October 27, 2010 post, If only we had a crystal ball (, I summarized a few cases to be decided this term by the United States Supreme Court.  There, I noted that it would be nice if we had a crystal ball to predict the outcomes of these cases.  The crystal ball is now a bit more clear after the Court’s March 1, 2011 decision in Staub v. Proctor Hospital ( 

The basic facts in Staub were that a supervisor was biased against an employee because of the employee’s military commitments.  Because of that animus, the supervisor put the employee on a corrective action plan.  When another company official, who had no apparent anti-military bias at all against the employee, found out that the employee violated the corrective action plan, he fired the employee.  The employee then sued for unlawful discrimination under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  Thus, the question in the case was whether the company could be held liable when the ultimate decision-maker was not motivated by any unlawful bias.

The Supreme Court’s answer was yes.  The Court specifically concluded that the lack of bias on the part of a company official who does the firing does not insulate the employer from liability.  Otherwise, the Court said, an employer could shield itself from liability by simply isolating the ultimate decision makers from the supervisors who have the unlawful bias.  This is sometimes referred to as the “cat’s paw” defense, which the Supreme Court has now rejected.

Although the Staub case was decided under USERRA, it is quite likely that its impact will be felt in all types of discrimination cases.  As a result, to reduce the risk of liability under the myriad of state and federal anti-discrimination laws, employers should step up their anti-discrimination training and education for all employees and supervisors, not just those who are the ultimate decision-makers.

If you have any questions about this post, please contact me at

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: