Posted by marykeating on April 20, 2010 under Discrimination in employment | 
Yesterday the Supreme Court agreed to decide a case involving the “cat’s paw” theory of discrimination. The case will be argued and decided next term, so Justice Stevens’ replacement should be on board by then (barring a major Senate gridlock). This theory of discrimination allows a plaintiff to show that, even though the decision maker who fired him was not biased against him, the biased person had influence over the decision or the decision maker. The colorful name derives from a short story about a monkey who convinces a cat to retrieve chestnuts from the fire. The monkey gobbles them up, but the cat has the burned paws.
This pops up in a lot of employment contexts. A supervisor may not have the power to fire his subordinates, but he certainly has the power to write them up and do their evaluations. If this person dislikes a subordinate because or his race or religion, for example, he can wage a campaign to get rid of the person. He can make up stories or exaggerate encounters so that the person can be called “insubordinate,” or “a poor team player. “This influence may be exercised
by, among other things, ‘supplying misinformation or failing to provide relevant information to the person making the employment decision.’”
The quote is from the case that the Supreme Court will hear, Staub v. Proctor Hospital. Staub alleges that he was fired for being a reserve member of the military. This action violates the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub showed that one of his supervisors found his military schedule problematic and wanted him fired. He won at trial, but the Seventh Circuit decided that there was too much evidence that the decision maker was independent of the biased subordinate’s influence, and used other, non-discriminatory reasoning to support his firing. The appellate court reversed his win.
It is never safe to predict why the Supreme Court takes a case, or which way it will rule. The Seventh Circuit faulted the trial court for not making a preliminary decision about whether there was enough evidence of “singular influence” by the biased supervisor to permit the cat’s paw theory to be presented to the jury. The Supreme Court may focus on that issue, or may decide to bless or damn the entire theory. Either way, it will be helpful to have guidance on the use of this theory of discrimination.
Posted by marykeating on November 11, 2009 under veterans' discrimination |
Veterans have long received mixed welcome upon their return home from service. Many of us remember the Vietnam era veterans’ difficulty in reassimilating, facing as they did receptions ranging from indifference to outright hostility. These days we give more lip service to honoring the sacrifices of this country’s service members. But whether we truly support our troops is open to question when such a large portion of our homeless population consists of veterans, and the medical benefits available for their specific needs is often denied.
One way we can, and must, support veterans is in the workplace. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) forbids employers from discriminating against individuals because of their service (or application to serve) in the uniformed armed services. Briefly, the law requires employers to rehire a returning service member into the same job they held, or a job up the ladder that he or she would have held if not for the break in service required by the military. If the service member needs additional training to meet the requirements of the old or the escalated job, the employer has to provide it. In addition, an employer may not refuse to hire or promote someone because of his membership in, for example, the National Guard. The reemployment requirements apply to any service member whose cumulative absences are less than five years, with exceptions.
In addition, returning service members with disabilities must be accommodated, if a reasonable accommodation is available.
The law asks service members to give reasonable notice of their being called to duty, and requires them to return promptly to work if they were gone for no more than 30 days. If they are gone longer, or return disabled, they have more time to notify the employer and claim their old job. If the absence is up to six months, they have two weeks to return; if more than six months, they have 90 days to notify the employer that they are ready to return to their old job.
This law can pose hardships on the employer. First of all, it applies to all employers, regardless of size. So a company of three can be in the position of losing an employee for short or long-term duty, and if the military does not give much warning of deployment, then the employer does not get that warning either. Upon return, the service member is entitled to the old job back; the replacement may need to be fired. Second, with the long-running wars in the middle east, return deployments are common. Sometimes there is very little notice that a person is being called up. Congress has decided that the burden of the uncertainty is going to be shared by the service member and his family, and the employer who will have to deal with the occasional tours of duty.
Employers have to post USERRA rights notices. As with other discrimination statutes, retaliation for exercising rights or standing up for other employees’ rights is actionable.
Posted by marykeating on August 27, 2009 under Discrimination in employment, Pending legislation |
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) aims to prohibit discrimination against employees who serve or have served in the United States military. One of the problems that the law tried to remedy is a reserve employee’s uncertainty about his or her schedule. Because someone with reserve obligations to the military may be called up with little notice, some employers denied them jobs or promotions. USERRA requires an employer to reinstate an employee after the tour of duty is over, which many employers find difficult to accommodate. The law applies to virtually all employers, without the typical threshold number of employees.
Still, the number of claims in this region is not huge. There are only three cases reported on Westlaw, which does not capture every case but is indicative of the prevalence of the claim. One reason could be the difficulty of proving discrimination in hiring. Proving discrimination at all is seldom easy, but hiring is particularly difficult. In a failure to hire case, the claimant lacks the usual access to coworkers and personal knowledge at the workplace that exists when an employee claims discrimination in a termination. In a recession, it’s even harder, since there are usually multiple applicants for open jobs, and the failure to choose the veteran or the Army Reserve officer can be justified by some ground or other.
Congress is considering a new bill to amend USERRA to provide rights for veterans who have been injured or disabled during their military service. The law would extend health benefit and leave of absence rights to employees receiving treatment for their service-connected disabilities. The law, if passed, would provide that employees may use any accrued sick and vacation leave, do not lose any seniority rights, and have the right to return to their jobs. The House passed the bill, the Wounded Veterans Job Security Act, in June. It is before the Senate now.
