The International Law Firm of Fulbright & Jaworski – Labor & Employment
Barbara Jean D'Aquila, T. J. Wray, Jan S. Gonnerman and Mary Dominguez
April 5, 2011 view as PDF
In two very recent decisions both authored by Justice Scalia, the U.S. Supreme Court expanded employer liability, allowing third-party retaliation claims and providing broad liability for the "cat's paw."
On January 24, 2011, in Thompson v. North American Stainless, LP (No. 09-291, Jan. 24, 2011), the U.S. Supreme Court ruled that a discharged employee, who was the fiancé of an employee who had filed a gender discrimination charge, may pursue a third-party Title VII retaliation claim as a "person aggrieved" as long as he is "within the zone of interests to be protected under Title VII." The Court declined to "identify a fixed class of relationships for which third-party reprisals are unlawful," although Justice Scalia suggested that "firing a close family member will almost always meet" the standard for an actionable claim, while "inflicting a milder reprisal on a mere acquaintance will almost never do so . . . ."
On March 1, 2011, in Staub v. Proctor Hospital (No. 09-400, Mar. 1, 2011), the U.S. Supreme Court held that employer liability may exist where a supervisor, motivated by a discriminatory animus, acts with an intent to cause an adverse employment action and that supervisor's "act is the proximate cause of the ultimate employment action." This liability theory, called the "cat's paw," applies where a supervisory employee with a discriminatory animus influences, but does not make, the ultimate adverse employment decision. The Supreme Court noted that an employer's independent investigation may insulate the employer from cat's paw liability where, for example, "the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action." But the Supreme Court did not identify all the ways an employer may act to preclude cat's paw liability. Although this case arose under the Uniformed Services Employment and Reemployment Rights Act of 1934 ("USERRA"), the Supreme Court noted the similarity between USERRA's statutory language and Title VII.
Join this distinguished panel, including a Senior EEOC Trial Attorney and an experienced in-house counsel, as they discuss the Supreme Court's recent expansions of employer liability. The speakers will contemplate the scope of third-party retaliation claims and predict the classes of relationships that will be covered by Title VII's anti-retaliation provision. Likewise, the panel will discuss the reach of the cat's paw and debate ways an employer may attempt to insulate itself from the effects of the discriminatory animus of a non-decision-maker. This is a must-not-miss web-seminar for employers seeking guidance on how to comply with the law and avoid liability for third-party retaliation claims or the discriminatory animus of a non-decision-maker.
Download the presentation materials in the attached PDF
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Barbara Jean D'Aquila
T. J. Wray