Thus far in 2011, the Supreme Court has issued three noteworthy employment law decisions, holding:
1. Third-party retaliation claims are actionable under Title VII;
2. Employers can be liable for discrimination even if the ultimate decision maker was free from discriminatory animus; and
3. The Fair Labor Standards Act’s antiretaliation provision protects oral as well as written complaints
The cases reaching these conclusions are summarized below:
On January 24, 2011, the U.S. Supreme Court ruled that an employee need not have personally engaged in protected activity (participating in a civil rights investigation or opposing unlawful discrimination) in order to have an actionable claim for retaliation under Title VII.
Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless (NAS). Ms. Regalado filed a charge of sex discrimination against NAS with the EEOC, and NAS terminated Mr. Thompson, purportedly in retaliation for Ms. Regalado’s EEOC charge. The lower courts ruled Mr. Thompson did not have a claim for retaliation under Title VII because he did not personally engage in any protected activity.
The Supreme Court reversed, hearkening back to its 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White
, in which the Court held Title VII’s antiretaliation provision prohibits any action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court thought it “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” The Court “decline[d] to identify a fixed class of relationships for which third-party reprisals are unlawful,” but indicated “that firing a close family member will almost always meet the Burlington
standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.”
The lesson from this case is that employers must now be cautious in taking adverse actions against employees whose family members and close friends have engaged in protected activity. Employers should be vigilant in ensuring that all employment decisions are justified by legitimate, non-retaliatory/non-discriminatory business reasons.
Staub v. Proctor Hospital: Employers Can Be Liable for Discrimination Even if the Ultimate Decisionmaker Was Free from Discriminatory Animus
On March 1, 2011, the Supreme Court in Staub decided the issue it framed as: “the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.” This kind of claim has been referred to as a “cat’s paw” claim.
Vincent Staub, a member of the Army Reserve, sued Proctor Hospital under the Uniformed Services Employment and Reemployment Rights Act (USERRA)
, after he was terminated by the Hospital’s Vice President of Human Resources, Linda Buck. Staub did not claim that Ms. Buck was motivated by anti-military-service animus; rather, he claimed his supervisors, Janice Mulally and Michael Korenchuk, wanted to get rid of him because of the strain his military duty put on the department. Mulally and Korenchuk had, just months before Staub’s termination, given him a written warning, which Staub claimed (and persuaded the jury) was completely bogus and motivated by discriminatory animus. Ms. Buck reviewed Staub’s personnel file before terminating him, and therefore, relied in part on this written warning in making her termination decision.
The Supreme Court held Staub established his claim, emphasizing that all Staub had to prove under USERRA was that his military service was “a motivating factor” in the Hospital’s decision to terminate him (which is the same standard under Title VII). The Court explained that the “a-motivating-factor” standard is satisfied “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.” Staub proved Mulally and Korenchuk intended the written warning to result in an adverse employment action to Staub, and it was a proximate cause of his termination because Ms. Buck reviewed it and relied on it in making her termination decision.
In light of this case, individuals making ultimate termination decisions should strive to ensure, not only that the termination is not discriminatory, but that any disciplinary actions and input factoring into the decision to terminate were also nondiscriminatory. Additionally, supervisors should continuously be trained on employers’ legal obligations, in order to avoid discriminatory animus infecting the disciplinary/supervisory process in the first place.
The FLSA’s antiretaliation provision prohibits “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed a complaint . . . ” under the FLSA. 29 U.S.C. § 215(a)(3)
. Kevin Karsten orally complained to his employer about the location of its timeclocks—between the area where Karsten and his coworkers donned and doffed (put on and took off) their protective gear and where they performed their job duties—making it so they were not paid for the time spent donning and doffing the protective gear (a potential FLSA violation). Karsten claimed his oral complaints about the time clock issue led to his termination. The lower courts dismissed his FLSA retaliation claim, opining that oral complaints were not protected by the FLSA’s antiretaliation provision (because one cannot “file” an oral complaint).
The Supreme Court reversed, holding the statute’s use of the word “filed” did not necessarily exclude oral complaints, and that given the remedial purpose of the statute, Congress likely intended the provision to include oral complaints. The Court did say, however that “[t]o fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Karsten’s complaints met this standard because he clearly contended to his employer that the time clock location was illegal, that he was thinking of taking them to court, and that the employer would lose.
The thing to remember from this case is that employers should tread carefully in terminating or taking adverse action against any employee who previously claimed the employer’s activities were unlawful, ensuring that the decision is based on legitimate reasons, unrelated to the complaints. Even if there is not a specific statute prohibiting retaliation for making a complaint of illegality, it is possible that the employee could later make a claim for wrongful termination in violation of public policy.
If you have any questions about these cases or any of the issues discussed in them, as they pertain to your particular circumstances, please do not hesitate to give us a call.
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