Employers Can Be Held Liable For Violating Uniformed Services and Reemployment Rights Act of 1994 Based On Discriminatory Animus of Non-Decision Making Supervisors

In Staub v. Proctor Hospital. the Supreme Court of the United States affirmed a lower court's application of what is known as the "cat's paw" theory of liability whereby an employer can be held liable for discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") when an otherwise non-discriminatory adverse employment decision made by a decision maker is influenced by discriminatory animus toward military service on the part of a non-decision making supervisor of the employee in question

Vincent Staub worked as a hospital technician, and was a member of the United States Army Reserves. Staub’s military service required him to attend military training a few days each month, and two weeks per year, and he was required to be prepared to be called to active duty. Two of Staub’s supervisors were overtly unsympathetic to his military commitments and,displayed hostility towards it. After Staub failed to comply with a requirement that he be at a certain location at a specific point in time, his supervisors reported this to the Vice-President of HR, who made the decision to terminate Staub. The Vice-President’s decision was unrelated to Staub’s military service but had been prompted by the supervisors who were found to be hostile to Staub's military service

Staub brought an action pursuant USERRA which prohibits discrimination against employees who serve in the military. Staub prevailed at trial, establishing that the discriminatory animus of the supervisors influenced the decision maker, who was herself not acting in a discriminatory manner. The Seventh Circuit Court of Appeals reversed the verdict based upon what it determined to be improper consideration of discrimination by the non-decision-making supervisors, neither of whom were the decision maker.

The Supreme Court disagreed with the Seventh Circuit, holding that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” As the Court noted, “it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.” The supervisor’s biased reports had been taken into account by the Vice-President, which was sufficient to establish liability. “An employer’s authority to reward, punish, or dismiss…” the Court pointed out, “is often allocated among multiple agents.” The Supreme Court sent the matter back to the District Court to either reinstate the verdict or to proceed with a new trial consistent with its opinion.

While lawsuits alleging discrimination against employees on account of military service in violation of USERRA have not yet become as commonplace in our experience as other types of discrimination claims, we think such lawsuits will be filed more frequently as more plaintiff's attorneys learn about the USERRA. Employers with employees who serve in the military reserves in particular should consider training supervisors at all levels to be mindful of the employer's obligations under USERRA. Such training could be incorporated into other types of discrimination and harassment training. 

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