Supreme Court Decisions and Internal Job Action Review

The Lentz Law Firm, LLC

Chuck Lentz, Employment Law

January 28, 2011



Two U.S. Supreme Court cases from the current term highlight the importance of internal reviews of recommended employee discharge and discipline.  The first decision, issued January 24, 2011, addressed the scope of an action for retaliation under Title VII, the federal anti-discrimination law.  The Court ruled that even employees who have not, themselves, engaged in any “protected activity” can pursue a claim for retaliation in some circumstances.  It is my opinion that this ruling underscores the importance of having internal review procedures in place to act as a check on recommendations for action made by line-level managers who may be too close to a controversy to be able to separate out the legal issues and act accordingly. 


The second decision, to be issued later this term, will address whether an employer may be shielded from liability when a final employment decision is made by someone who harbors no illegal discriminatory or retaliatory motive but acts on the basis of circumstances and information provided by others who are acting out of impermissible motives.  Regardless of the position taken by the Court on this “cats paw” theory, it is very likely that vigorous and independent internal reviews will emerge as even more important tools for avoiding exposure for illegal job action. A brief review of each of these cases, and some additional thoughts about internal review procedures, follows. 



Thompson v. North American Stainless


The Court issued its unanimous opinion in this case on January 24th, 2011. 


This case stems from the firing of Eric Thompson in early 2003.  Just three weeks earlier, his fiancé, who was also employed by the company, had filed a complaint of sex discrimination at the EEOC. Although there was no evidence that Thompson, himself, had taken any action that would entitle him to protection from retaliation under Title VII, he argued that by firing him, the company was effectively retaliating against his fiancé and was attempting to pressure her to drop her charge.  He also argued that other employees with complaints would be discouraged from bringing them if they understood that there would be job consequences for friends and loved ones.  Thompson sued his employer under the anti-retaliation provisions of Title VII.


The issue presented in this case was how far the scope of protection contained within the anti-retaliation provisions of federal anti-discrimination law extends.  Specifically, does the law prohibit retaliatory acts against employees other than the employee who engages in action protected under the law and, if it does, what are the factors that determine whether any particular employee is protected? 


The Court had no trouble answering the first question: unanimously, the Court ruled that the anti-retaliation provision in Title VII clearly prohibited any job action that would “dissuade” an employee from pursuing their rights under the law.  They found that firing the fiancé of an employee who made a complaint of sex discrimination could easily dissuade a person from bringing such a complaint and that this was precisely the kind of job action the law prohibited.  Based on this conclusion (and after grappling with a more technical question as to whether Thompson was authorized under the statute to sue), they ruled that Thompson could maintain his action against the company.


The second question – the question of just how far the anti-retaliation protection extended to cover people merely associated with the complaining employee – was not answered specifically.  The Court said they could not “identify a fixed class of relationships” that would always bring any “associated” employee within the protection of the anti-retaliation provision.  Acknowledging the complexity and nuance inherent in the situations out of which these cases arise, the Court said that, “Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules.” The only guidance offered by the Court was that, “firing a close family member will almost always [suffice], and inflicting a milder reprisal on a mere acquaintance will almost never do so.”  The responsibility for making case-by-case decisions about whether a particular job action will create exposure for illegal retaliation is, therefore, left to employers and the lower courts.


The lesson for employers in this decision is relatively straightforward:  retaliation in the aftermath of some sort of “protected activity” like a complaint, is a very real problem that a unanimous Supreme Court had no difficulty in seeing in this case. Every seasoned HR professional, and every smart business manager, is already aware of the human inclination to want to fight back when a complaint is filed.  Suspicions will naturally fall on employees who are felt to be supporters of the complaining employee.  It is now clear that any job action against these other employees that might “dissuade” others from filing their own complaints creates the risk of a retaliation claim.  Because of the difficulty of making the kinds of nuanced assessments that would uncover this risk in any particular situation, all recommended discharges, or other significant job actions, should be carefully reviewed by detached, upper level management.  The person making this review should also have final decision making responsibility and the clear authority to effectively “undo” decisions recommended by others if any part of the recommendation might be flawed.



Staub v. Proctor Hospital


This case was argued before the Court in early November 2010.  A decision has not yet been announced.   It is expected that the decision will impact the nature and extent of any internal review made by upper level managers of job action recommendations made by subordinates.


The question presented in this case is whether, or to what extent, a company or organization will be liable under employment laws if the person making the ultimate decisions about job actions, including terminations, cannot be shown to have a discriminatory motive but makes a decision on the basis of circumstances created and information provided by other managers who can be shown to have been motivated by prohibited factors. 


The case involves Vincent Staub, a tech employed by Proctor Hospital who was also a member of the Army Reserves.  His military duties regularly prevented him from being scheduled for weekend work and for a couple of weeks during the summer.  He was also called to active duty for several months as part of Operation Iraqi Freedom.  The evidence made it clear that his immediate supervisors were very unhappy about his frequent absences due to military service and felt his calls to duty put them, and other members of the department, under an unfair burden.  These supervisors issued disciplinary warnings to Staub for claimed infractions unrelated to his military service.  They eventually recommended his termination following what they called a second infraction of one of the earlier warnings.  This type of progressive discipline is, of course, much encouraged in most workplaces and frequently becomes the basis for taking, and approving, job action.  


The termination recommendation of Staub’s supervisors went to an HR manager who had final decision-making authority.  Although trial testimony presented conflicting pictures of what the HR manager really was aware of at the time she made the decision to discharge Staub, her testimony reflected that she made the decision primarily on the basis of the disciplinary history reported by the immediate supervisors and other evidence in his file.  There was no evidence that she was personally influenced by his calls to duty. Staub sued claiming a violation of the law protecting members of the military from job consequences as a result of their military service (USERRA).  Staub won his case at trial. 


Despite the evidence that the line-level supervisors were motivated by an anti-military bias in violation of USERRA, the 7th Circuit Court of Appeals ruled as a matter of law that Proctor Hospital, the employer, was not liable under applicable law because of the lack of evidence that the final decision maker was motivated by impermissible reasons.  The 7th Circuit reasoned that the illegal motivations of the lower level supervisors did not “singularly influence” the final decision maker’s choice.  That is, they held that the final decision maker’s action was not a mere “rubber stamp” of an impermissible job action. 


Other circuits, considering similar “cats paw” cases, have assessed liability without looking at the motivation of a “final” decision maker if the plaintiff can prove that the impermissible motivation, wherever it is found, actually caused the job action. 


The Supreme Court is expected to address the standards to be used in deciding these types of cases.  If the Court endorses some version of the position taken by the 7th Circuit, it is highly likely that it would shield an employer from liability only if the final decision maker actually conducted some form of independent investigation that revealed a non-discriminatory reason for the job action.  If the Court endorses a test that would require a demonstration that the impermissible motivation caused the job action, a vigorous and independent internal review remains the best chance an employer may have to discover that motivation before it is put into effect.  Either way, taking the decision out of the hands of people who may be too emotionally invested in the situation to act objectively is key to avoiding liability.


Effective Internal Review


Most employers already have some sort of internal review procedure in place to act as a check on discharge decisions.  Most commonly, a manager or supervisor is required to consult with HR in advance.  Unfortunately, in many organizations that is the extent of it.  For an internal review to be meaningful, and a real screen for actions that give rise to liability, upper management needs to assure that:


  1. Sufficient time can be taken to ensure that the review has integrity.  In some circumstances, a paid suspension of the person facing job action may be needed to allow sufficient time.
  2. The person responsible for the review needs to have sufficient status and authority to make the review meaningful.   The person acting as the final decision maker must have sufficient authority to undo any recommended job action.
  3. To ensure access to information, it must be clear that employees are required to cooperate with the internal review.
  4. Assessment and evaluation of the recommended job action must, if at all possible, include information other than the submissions and opinions of the supervisors/managers recommending the job action.
  5. Sufficient staff time will be freed up to make a meaningful review possible.


If you would like to discuss any of these cases or issues in more depth, or if I could be of assistance to you with any questions you may have about employment law issues, generally, please do not hesitate to get in touch.  

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