Kansas City Employment Lawyer Blog

The allegations were too vague and the evidence too weak to make a case for common injury, which was essential to include all female employees employed since 1998 in a sweeping sex discrimination lawsuit against Wal-Mart. So said the Supreme Court Monday when throwing out the sex-discrimination lawsuit against Wal-Mart. The alleged victims had too little in common to form a single class of plaintiffs.

This decision will surely affect other employment class action cases because lower courts will look harder at the factors that constitute a class for bringing mass claims. The majority held that plaintiffs must identify a specific employment practice that unlawfully discriminates. The plaintiffs alleged that Wal-Mart's personnel policy permitted sex biases that pervaded the corporate culture and denied fair opportunity to women. Consequently, women remained concentrated in the rank and file positions with lower wages while men rose and dominated the managerial ranks with higher wages. The statistics showing these pay and promotion differences prove nothing according to the justices.

The Federal Rules of Civil Procedure set out the criteria for class-action lawsuits. Plaintiffs must demonstrate that the facts and law at issue are "common to the class." Justice Scalia did not accept the data and experts the plaintiffs provided.

Justice Ruth Bader Ginsburg wrote that the allegations met the test that earlier Supreme Court decisions have set out for employment-discrimination suits. The lower courts records indicated promotions were made by a tap on the shoulder process. Vacancies are not regularly posted...managers choose individuals to promote on the basis of their own impressions.

Wal-Mart and the business community are praising the ruling as demonstrating that company-wide discriminatory pay and promotion policies cannot be demonstrated statistically.

The plaintiff's attorneys intend to regroup and will concentrate on smaller, more focused class action groups. They are encouraging women that Wal-Mart may have discriminated against to file individual complaints with the Equal Employment Opportunity Commission.

Source:
Justices Curb Class Actions, The Wall Street Journal, June 21, 2011

"Cat's paw" theory is used to describe a situation where in one uses another to accomplish his or her purpose. It is based on a 17th Century French fable, "The Monkey and the Cat," about a devious monkey persuading an unworldly cat to obtain chestnuts from a burning fire. The poor cat gets burned, only to watch the monkey gobble up all of the chestnuts.

In the case, Staub v. Proctor Hospital, on March 1, 2011, the U.S. Supreme Court Ruling addressed employer liability regarding unlawful discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The statute prohibits adverse employment decisions in which discrimination is a motivating factor. Under this statute, "[a]n employer shall be considered to have engaged in actions prohibited [by USERRA] . . . if the person's membership ... in the uniformed services is a motivating factor in the employer's action."

Mr. Victor Staub worked for Proctor Hospital as an angiography technician and during his tenure with Proctor was also a member of the United States Army Reserves. Trial evidence revealed that Staub's management team, including his supervisor and her boss, discriminated against Staub because of his military obligations.

His supervisor repeatedly crafted the work schedule so that Staub was responsible for shifts during which he also had Reserves commitments. The supervisor was known to make disparaging comments regarding military responsibilities and allegedly requested that one of his co-workers, "help her get rid of him." A disciplinary warning was issued to Staub in which he was accused of violating a company rule. At a later date, he was accused again for violating the rule. Finally, the hospital's vice president of human resources was involved and terminated Mr. Staub's employment, having relied on the supervisor's accusations and reports.

Ultimately, Staub's lawsuit against the hospital was filed under USERRA, and alleged that the supervisor's discrimination against Staub, due to military obligations, was what influenced the human resources vice president to make the ultimate decision to fire Staub. Initially, the jury found Proctor Hospital to be liable; however, this was reversed by the U.S. Court of Appeals for the Seventh Circuit. The Court of Appeals' decision held that Mr. Staub's supervisor, a non-decision maker, would have to have "singular" influence" over the Human Resources Vice President, the ultimate decision maker, in order for Proctor Hospital to be liable. The court was not convinced that the final decision maker was wholly dependent upon the representations of Mr. Staub's management team, thus Proctor Hospital was "entitled to judgment as a matter of law."

The Supreme Court reversed this decision and its majority opinion held 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." Consequently, because the vice president of HR had relied on the actions and statements by Staub's management team, the Court found that discrimination played a part in the decision to fire Staub. Even though the firing agent, the vice president of HR, harbored no unlawful animus, but relied partly on the basis of discriminatory reports and actions by the management team, then discrimination could be a factor in the action to terminate the employee.

It is important to note that effects of this Supreme Court decision extend beyond the USERRA statute. This statute is very similar to Title VII and both prohibit negative employment actions where discrimination is the motivating factor. This decision will likely be applied to Title VII claims.

Sources:
What The Heck Is The 'Cat's Paw Theory' And Why Should You Care?, Staffing Talk, by David Gee, March 22, 2011

EMPLOYMENT LAW; The Cat's Out of the Bag; U.S. Supreme Court Endorses 'Cat's Paw' Theory of Liability in Employment Cases, New Jersey Law Journal, May 31, 2011, By Andrew M. Moskowitz and Carly J. Skarbnik

Supreme Court Review in Labor and Employment Law, Part I, New York Law Journal, June 3, 2011

A unanimous Supreme Court ruling was handed down yesterday. Employers can be sued if they retaliate against a relative or close associate of a worker who filed a discrimination claim. Retaliation is when employers punish a worker for complaining about discrimination.

In 2002 Miriam Regalado filed a sex discrimination complaint with the Equal Employment Opportunity Commission against her employer, Acerinox SA's North American Stainless. Three weeks after the commission contacted the employer as part of the investigation her then-fiancé, Eric Thompson, who also worked for North American Stainless, was fired.

Mr. Thompson sued, alleging that he was fired in retaliation for Ms. Regalado's complaint under Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination as well as retaliation for complaining about discrimination.

The case was originally thrown out by The Sixth U.S. Circuit Court of Appeals in Cincinnati. The Court's reasoning was that Mr. Thompson could not sue because he had not engaged in an activity protected by Title VII, such as complaining about discrimination.

For the record, North American Stainless said in its brief that Mr. Thompson was fired for poor performance and writing a memo "derogatory to North American Stainless' management practices."

The Supreme Court found that the anti-retaliation provision covers "a broad range of employer conduct" that could deter "a reasonable worker" from objecting to discrimination. Writing for the Supreme Court, Justice Antonin Scalia wrote, "We think it obvious that a reasonable worker might be dissuaded...if she knew that her fiancée would be fired."

To keep the provision from being abused, the court said that to file suit, a third party must fall within a "zone of interests" the law protects.

Because he was a North American Stainless employee Mr. Thompson qualified. Justice Scalia wrote, "and the purpose of Title VII is to protect employees from their employers' unlawful actions." The case is expected to go to trial unless settled.

Source:
Justices Extend Protection Over Workplace Retaliation,
The Wall Street Journal, January 25, 2011

The United States Supreme Court has agreed to decide whether the largest employment lawsuit in United States history should proceed as a class action against the world's largest retailer. The lawsuit was brought by Betty Dukes, a store greeter in California, for gender discrimination.

The Supreme Court will decide whether over one million current and former employees can tie their discrimination claims together in a single class action lawsuit. According to the claimants, while over 70% of Wal-Mart's workforce is comprised of women, less than 33% of its management consists of females.

The lawsuit was originally filed in 2001, and has been fought heavily by the retail giant. At issue in front of the Supreme Court is only whether the original lawsuit should proceed as a class action. Liability and merits-based arguments have not been presented. The current case is Dukes v. Wal-Mart Stores, Inc. (10-277).

Source:

Justices accept appeal over Wal-Mart gender pay lawsuit