The Equal Justice Society joined the Lawyers’ Committee for Civil Rights Under Law and AARP in filing an amicus brief (PDF available for download here) in the Supreme Court of the United States supporting the petitioner in Staub v. Proctor Hospital. The brief urges the Court to recognize employer liability for the unlawful bias of a supervisor if the bias was a significant motivating factor for an adverse employment practice, even if the ultimate decisionmaker – someone other than the supervisor — harbored no discriminatory motive toward the employee. This is an important question that
Justice Alito also raised in the recent Supreme Court decision, Ricci v. DeStefano, but that has not yet been resolved.
The petitioner, Vincent Staub, a member of the Army Reserves, was a hospital technician at Proctor Hospital for fourteen years until his dismissal in 2004, which he argues was motivated by discrimination based on his military status. Multiple supervising officials were hostile towards Staub for his involvement in the military and although the Court of Appeals for the Seventh Circuit acknowledged that “there can be little dispute that… [Staub’s supervisor] didn’t like Staub, and that part of this animus flowed from his membership in the military,” the Court refused to recognize the animosity of nondecisionmakers, such as Staub’s supervisor, without a showing of “singular influence” over the ultimate decisionmaker, a different official who was responsible at the last stage for handing Staub his pink slip.
While singular influence could include concealing or fabricating relevant information given to the person who ultimately makes the decision to dismiss an employee, the Court stated that it would not matter if the information came from a potentially biased source as long as the decisionmaker appeared to conduct her own independent investigation.
By focusing on the ultimate decisionmaker, standards such as the one applied by the Court in Staub effectively legalize unlawful action in all phases of the decision-making process except the last stage. The amicus brief argues that a “motivating factor” standard should be applied in cases like these, similar to what is used in other cases involving protection against discrimination, like Title VII of the Civil Rights Act of 1964.
Just as Title VII protects against discrimination on the basis of race, sex, religion, national origin, or ethnicity, the Uniformed Services Employment and Reemployment Rights Act (USERRA) at issue in this case protects against discrimination on the basis of military status. Recognizing employer liability for adverse employment actions motivated by unlawful animus on the part of supervisors is important to prevent discrimination that may be occurring behind-the-scenes. To fully carry out the purposes of USERRA and Title VII, the whole employment process should be free from bias.
The law firm Fried, Frank, Harris, Shriver & Jacobson LLP and the Civil Rights Appellate Clinic at Pennsylvania State University Dickinson School of Law provided pro bono assistance.