military-employeeEmployers that think they can’t be held liable for anti-military animus or other discrimination in the workplace caused by supervisors with only limited authority should think again in light of the Supreme Court’s 2011 decision in Staub v. Proctor Hospital, No. 09-400 (Mar. 1, 2011).

The plaintiff was an employee of the defendant’s hospital. As he was also a member of the United States Army Reserves, the plaintiff was required to attend drill one weekend per month and to train fulltime for two to three weeks a year.

The reservist’s two supervisors were hostile to the reservist’s military obligations, scheduling the reservist for additional shifts without notice so that he would “pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.” One supervisor referred to the reserves as “a b[u]nch of smoking and joking and [a] waste of taxpayers[‘] money.”

To get back at the reservist, a supervisor wrote the employee up for violation of a rule that the reservist alleged did not exist and that he did not violate. The management directed the reservists’ supervisor to “create a plan that would solve [the reservist’s] ‘availability’ problems.” Before this could be done, the reservist was written up again. These write-ups were used by human resources to terminate the reservist from employment with the hospital.

The reservist filed suit, alleging a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. section 4301 et seq. The reservist claimed that his discharge by human resources, though not based on anti-military hostility, was motivated by reports from supervisors who were hostile towards his obligations as a military reservist.

The statute in question prohibits the denial of employment, reemployment, retention, promotion or any other benefit on the basis of membership in the armed forces. (38 U.S.C. section 4311(a).) An employer violates this statute if membership in the military “is a motivating factor in the employer’s action, unless the employer can prove the action would have been taken in the absence of such membership.” (38 U.S.C. section 4311(c).)

A jury agreed with the reservist’s allegation that this statute had been violated. On appeal, the Seventh Circuit reversed upon finding that the termination was “not wholly dependent upon the advice” of the biased supervisors because unbiased information was also considered.

The Supreme Court granted certiorari and reversed the opinion of the Seventh Circuit, thereby reinstating the judgment in favor of the reservist by finding that an employer is liable for the actions of a biased supervisor, even if they do not have authority to terminate an employee. The court held that an employer is liable if 1) a supervisor performs an act that is motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and 2) that act is a proximate cause of the ultimate employment action.

The High Court offered its decision after a lengthy discussion of tort law principals, including an employer’s liability for the acts of their agent/employee and the ability to hold a party liable for the foreseeable consequences of their actions, even if they did not intend those consequences to come to fruition.

This decision gives further reason for employers to think twice about employing supervisors that may discriminate on the basis of military status, even if those supervisors have no authority to hire, fire or promote employees.

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About Scott Talkov

Scott Talkov joined the Riverside law firm of Reid & Hellyer in August 2009 after serving as a Summer Law Clerk with the firm in 2008. He practices real estate, business and bankruptcy litigation. He was named a Rising Star by Super Lawyers Magazine in 2013. Scott serves on the board of directors for the Riverside County Barristers Association, the club for young attorneys in Riverside County. He graduated cum laude from Washington University in St. Louis School of Law and is the Asisstant Director of the Associated Students Legal Clinic at University of California, Riverside.

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  1. avatar
    Gynni

    Is it considered discrimination if you have NOT served in the military and the employer doesn’t hire you/let’s you go because you do not have it in your background?

    Reply

 

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