- SUPREME COURT RECOGNIZES A COMPANY CAN BE LIABLE FOR THE DISCRIMINATORY INTENT OF ITS NON-DECISIONMAKING SUPERVISORS
- CORRECTIONS OFFICER FIRED FOR NON-DISCRIMINATORY REASON FOR PEPPER SPRAY MISUSE
- CONTRACT ARBITRATION CLAUSE UPHELD IN DISCRIMINATION CLAIM
- IF YOU HAVE NO KNOWLEDGE OF THE COMPLAINT, THERE IS NO RETALIATION
- YOUR EMPLOYEE’S "BELIEF" IS NOT SUFFICIENT TO STATE A RETALIATION CLAIM
SUPREME COURT RECOGNIZES A COMPANY CAN BE LIABLE FOR THE DISCRIMINATORY INTENT OF ITS NON-DECISIONMAKING SUPERVISORS
In Staub v. Proctor Hospital, No. 09-400, the U. S. Supreme Court ruled that an employer can be liable for the discriminatory acts of its supervisors who do not make the final employment decisions. This is called the "Cat’s Paw" doctrine. It is the situation where a supervisor with discriminatory intent, but who lacks authority to make the job decision, influences the decisionmaker in a plan to bring about a discriminatory employment action.
In Staub, after receiving a report from the supervisor that the plaintiff had violated the progressive discipline imposed on the plaintiff, the vice-president of human resources reviewed the plaintiff’s personnel file and decided to fire the plaintiff. The plaintiff sued the employer and contended not that the vice-president of human resources was motivated by hostility but that the supervisor who wrote the report was and that action influenced the vice-president of human resource’s decision. The U.S. Court of Appeals for the Seventh Circuit ruled that the employer was entitled to judgment because the decisionmaker, the vice-president of human resources, had relied on more than the supervisor’s advice in making the decision.
The U.S. Supreme Court reversed and held that so long as the earlier supervisor intended, for discriminatory
reasons, that the adverse action occur, this intent becomes the intent of the employer as required for
liability. The Court held that under tort law the decisionmaker’s exercise of judgment does not stop the
earlier agent’s action from being the proximate cause of the harm. The Court explained that if an employer
could isolate its decisionmaking personnel official from its supervisors, invest the decision to take adverse
employment actions in that official, and then ask the official to review the employee’s personnel file before
taking the adverse action, this would improperly shield the employer from discriminatory acts and
recommendations of supervisors that were designed and intended to produce the adverse action.
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CORRECTIONS OFFICER FIRED FOR NON-DISCRIMINATORY REASON FOR PEPPER SPRAY MISUSE
In Bush v. Houston County Com’n, 2011 WL 507267 (11th Cir. 2011), a female
corrections officer was terminated after pepper spraying an inmate. The corrections officer claimed that she
was terminated on account of her race and gender. The District Court granted summary judgment in favor of the
defendants, which was affirmed on appeal. The Eleventh Circuit found that the defendants reasonably believed
that Bush had violated the jail’s use-of-force policy by unjustifiably pepper-spraying an inmate, and that
there was insufficient evidence to establish that "similarly situated" white male officers had been
treated differently. The Eleventh Circuit also found no error with the District Court’s reliance upon the
investigation report to show that the reason for the discharge was the defendants’ investigation into the
unjustifiable pepper spray incident. The employee also failed to show that any males were treated any
differently for unjustifiable force.
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CONTRACT ARBITRATION CLAUSE UPHELD IN DISCRIMINATION CLAIM
In Robertson v. U-Haul Co. of Texas, 2011 WL 444773 (N.D. Tex. 2011), an at-will
employee claimed that his employer discriminated against him on the basis of race and age and filed a claim in
the District Court. The employer responded with a motion to dismiss because the employee had signed an
employment agreement stating that in consideration for continued employment with the company, the employee
agreed to arbitrate all employment disputes, including discrimination claims. The District Court held that
the arbitration clause was a valid arbitration clause and the issue of discrimination was required to be
arbitrated. In addition, the Court found that the fact that the contract was given to the employee after his
employment had begun did not matter; the continued employment was the consideration for the arbitration
agreement.
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IF YOU HAVE NO KNOWLEDGE OF THE COMPLAINT, THERE IS NO RETALIATION
In Rivera-Colon v. Mills, 2011 WL 504049 (1st Cir. 2011), an employee filed an
anonymous administrative complaint about gender discrimination and sexual harassment within her agency. The
employee was thereafter suspended, but the Court held that the suspension was insufficient to support a claim
of retaliation. The Court found that the employee was suspended before the supervisors who imposed the
suspension had learned that she was the source of the anonymous complaint. Thus, the Court found that the
suspension of the female employee was not retaliation for the anonymous complaint.
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YOUR EMPLOYEE’S "BELIEF" IS NOT SUFFICIENT TO STATE A RETALIATION CLAIM
In Sardiga v. The Northern Trust Company, No. 1-09-2930, Illinois Appellate Court,
1st District, March 15, 2011, the Plaintiff had worked for less than a year in his job as vice-president of
the employer’s financial consulting group. The employee filed suit for retaliatory discharge in violation of
the Illinois Whistleblower Act. But, the plaintiff failed to plead any facts showing his refusal to participate
in an alleged illegal activity. The plaintiff repeatedly complained and inquired about "what he believed"
were illegal practices. The Court held that this did not constitute an actual "refusal to participate"
for purposes of the Whistleblower Act. The Court ruled that a plaintiff has the burden to establish that the
employer retaliated against the employee for refusal to participate in a qualifying activity.
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