Category Archives: US Supreme Court

US Supreme Court Rules for Employee on “Cat’s Paw” Theory

US Supreme Court BuildingThe United States Supreme Court recently unan­i­mously issued a major vic­tory for employ­ees under “USERRA”, the Uni­formed Ser­vices Employ­ment and Reem­ploy­ment Rights Act of 1994, 38 U.S.C. § 4301 et seq., on the “cat’s paw” the­ory in employ­ment dis­crim­i­na­tion claims. The deci­sion was in Staub v. Proc­tor Hos­pi­tal, — U.S. — (March 1, 2011) (opin­ion at Google Scholar). Jus­tice Scalia wrote the opin­ion for the unan­i­mous court. Jus­tice Alito wrote an opin­ion con­cur­ring in the judg­ment, which Jus­tice Thomas joined. Jus­tice Kagan did not par­tic­i­pate in the decision.

What is the “Cat’s Paw” Scenario?

Drew's kitty-cat, HannaSo, what the heck is the “cat’s paw” the­ory? Does it explain why my cat, pic­tured at the left, is star­ing so intently at you?

First, to define “cat’s paw” in a non-legal con­text, the Webster’s Online dic­tio­nary defines a “cat’s paw” as: “A per­son used by another to gain an end.” The term arises out of a fable in which a a shrewd mon­key tricks a cat into pulling roast­ing chest­nuts out of a fire—the cat gets its paw burned, and the mon­key gets the chest­nuts and scam­pers away unhurt.

Con­tinue read­ing US Supreme Court Rules for Employee on “Cat’s Paw” The­ory

Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?

I pre­vi­ously wrote about the Supreme Court’s retal­i­a­tion deci­sion in Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), in which the US Supreme Court sub­stan­tially broad­ened the abil­ity of employ­ees to file retal­i­a­tion claims under Title VII of the Civil Rights Act of 1964. It was a unan­i­mous (9–0) decision.

National Basketball Association I wanted to set out some addi­tional thoughts about Burling­ton North­ern, because it addresses an issue that has trou­bled the courts in inter­pret­ing the fed­eral anti-discrimination laws: When is an employer’s con­duct seri­ous enough in dis­ad­van­tag­ing an employee so that the employee has a claim under the employ­ment dis­crim­i­na­tion laws? The answer is easy when the employer’s deci­sion affects the employee’s pocket book, like with ter­mi­na­tion, fail­ure to hire, demo­tions, and the like. The answer has been much harder when the employer’s con­duct didn’t directly affect the employee’s pocket book.

NBA ref­er­ees strug­gle with a sim­i­lar issue: where is there enough phys­i­cal con­tact on the court to jus­tify call­ing a foul on a player. So let’s explore some par­al­lels between these employ­ment dis­crim­i­na­tion issues and the NBA’s “no blood no foul” rule.

The NBA’s “No Blood No Foul” Rule

If you watch National Bas­ket­ball Asso­ci­a­tion games, you might be struck by how much phys­i­cal con­tact there is on the court and how rarely the ref­er­ees call per­sonal fouls over that phys­i­cal con­tact. Fans of the NBA have only a par­tially kid­ding way to refer to the “stan­dard” by which the ref­er­ees decide how much con­tact will result in a per­sonal foul being called. It’s the “no blood no foul” rule. In other words, the ref­er­ees will allow a lot of phys­i­cal con­tact, and will only call a foul when some­one gets blood­ied as a result of the con­tact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA ref­er­ees apply, regard­less of what is writ­ten in the Offi­cial Rules. The idea behind the “no blood no foul” rule is this: there is so much fast-paced hurley-burly con­tact on the bas­ket­ball court, much of which makes it more excit­ing for the fans, that call­ing a foul for any phys­i­cal con­tact (or a lower defined level of phys­i­cal con­tact) would slow down the game for fans and make the game less enjoy­able, unrea­son­ably impede the skill of the play­ers, and makes it impos­si­bly hard for offi­cials to iden­tify “con­tact”. So the appear­ance of blood is a more “objec­tive” indi­ca­tion that the con­tact really mat­tered and really con­sti­tuted an unfair inter­fer­ence with the other player.

The Supreme Court Strug­gles With “When is There a Foul”?

Courts for years have strug­gled with the employ­ment dis­crim­i­na­tion equiv­a­lent of the “no blood no foul” rule. For the courts, assum­ing unlaw­ful dis­crim­i­na­tion occurred: when is the con­se­quence of the dis­crim­i­na­tion seri­ous enough and objec­tively dis­cernible so that courts will rec­og­nize a claim and inter­vene by acti­vat­ing the court’s process and poten­tially award­ing damages.

Except for sit­u­a­tions involv­ing hos­tile work envi­ron­ment, the courts have trans­lated the NBA’s blood require­ment into a tan­gi­ble eco­nomic con­se­quence. Thus, much in the spirit of the NBA, the courts have said eco­nomic harm must be demon­stra­ble as a result of dis­crim­i­na­tion, or else the courts won’t enter­tain the claim no eco­nomic con­se­quence, no legal vio­la­tion, case dismissed.

Con­tinue read­ing Analy­sis: The “No Blood No Foul” Rule. When is an Employer’s Con­duct Severe Enough to Con­sti­tute Retal­i­a­tion?

President Obama Nominates Sonia Sotomayor for Supreme Court

Sonia Sotomayor Pres­i­dent Obama today announced (CNN story and video) his nom­i­na­tion of Sonia Sotomayor, cur­rently a Judge on the Sec­ond Cir­cuit, to fill the posi­tion on the US Supreme Court to be vacated by the res­ig­na­tion of Jus­tice David Souter.

Within a few hours of Pres­i­dent Obama’s announce­ment, the CATO Insti­tute and The Her­itage Foun­da­tion had sig­nif­i­cant arti­cles devoted to attack­ing the nom­i­na­tion. Rush Lim­baugh this after­noon called Judge Sotomayor a “racist”. Sean Han­nity called her a “rad­i­cal” who had made “out­ra­geous” and “amaz­ing” state­ments. The lib­eral sites raced out arti­cles attack­ing the attack­ers and defend­ing Judge Sotomayor (Talk­ing Points Memo and The Huff­in­g­ton Post).

The first item that has been cir­cu­lat­ing about Judge Sotomayor is a state­ment she made about appel­late courts mak­ing “pol­icy” dur­ing a panel dis­cus­sion at Duke Uni­ver­sity in 2005 (note: this clip is length­ier, and pro­vides much more con­text, than the clips played on most news sites):

Con­tinue read­ing Pres­i­dent Obama Nom­i­nates Sonia Sotomayor for Supreme Court

Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

USSupremeCourtRightFountain 4/1/09: The US Supreme Court ruled that “pre-dispute arbi­tra­tion agree­ments” in col­lec­tive bar­gain­ing agree­ments (union con­tracts) are enforce­able, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5–4 decision).

This was an age dis­crim­i­na­tion case under the Age Dis­crim­i­na­tion in Employ­ment Act of 1967 (ADEA). The plain­tiff was a mem­ber of a union, and the col­lec­tive bar­gain­ing agree­ment (union con­tract) required sub­mit­ting age dis­crim­i­na­tion claims to bind­ing arbi­tra­tion.

The US Supreme Court had pre­vi­ously ruled, but not in a labor union set­ting, that arbi­tra­tion agree­ments for ADEA claims were enforce­able under the Fed­eral Arbi­tra­tion Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26–33 (1991)). So the real issue in Penn Plaza was whether there would be a dif­fer­ent result because of the union con­tract set­ting and the National Labor Rela­tions Act.

Con­tinue read­ing Arbi­tra­tion Agree­ments in Union Con­tacts are Enforce­able; US Supreme Court in Penn Plaza v. Pyett

US Supreme Court Broadens Definition of “Opposition”; for Retaliation Claims; Crawford v Metropolitan Government of Nashville, 1–26-09

1/26/09: In Craw­ford v. Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son County, Ten­nessee, 129 S. Ct. 846 (2009), the US Supreme Court unan­i­mously ruled that an employee engaged in pro­tected activ­ity under Title VII’s retal­i­a­tion pro­vi­sion by answer­ing an employer’s ques­tions in con­nec­tion with a sex­ual harass­ment inves­ti­ga­tion started by com­pany rumors about a male super­vi­sor. Jus­tice Souter wrote the major­ity opin­ion, joined by Roberts, Stevens, Scalia, Kennedy, Gins­burg, and Breyer. Jus­tice Alito wrote an opin­ion, con­cur­ring in the judg­ment, joined by Jus­tice Thomas.

Ms. Craw­ford Responds to an Inves­ti­ga­tion into Sex­ual Harassment

USSupremeCourt Here is what hap­pened: Rumors started cir­cu­lat­ing about sex­u­ally inap­pro­pri­ate behav­ior by a male super­vi­sor, Gene Hughes, at “Met­ro­pol­i­tan Gov­ern­ment of Nashville and David­son County” (“Metro”). A human resources employee started inves­ti­gat­ing, and asked Vicky Craw­ford whether she had seen any inap­pro­pri­ate behav­ior by Mr. Hughes. Craw­ford responded yes, and described sev­eral instances of sex­u­ally inap­pro­pri­ate behav­ior. For exam­ple, Ms. Craw­ford had asked Mr. Hughes “what’s up”, and he responded by grab­bing his crotch and say­ing “you know what’s up”. On another occa­sion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employ­ees who sim­i­larly reported sex­u­ally harass­ing behav­ior from Mr. Hughes.

Con­tinue read­ing US Supreme Court Broad­ens Def­i­n­i­tion of “Oppo­si­tion”; for Retal­i­a­tion Claims; Craw­ford v Met­ro­pol­i­tan Gov­ern­ment of Nashville, 1–26–09

Supreme Court “fills in the blank” to recognize retaliation claims for federal employees under ADEA; Gomez-Perez v. Potter, 2008

USPS Logo 5–27-08: The US Supreme Court in Gomez-Perez v. Pot­ter, 128 S. Ct. 1931 (2008) ruled that the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, 29 U.S.C. § 621 et seq., pro­hib­ited retal­i­a­tion against fed­eral employ­ees who had com­plained about age dis­crim­i­na­tion, even though the fed­eral employee sec­tion of the ADEA did not expressly pro­hibit retal­i­a­tion. This was a 6–3 deci­sion. The major­ity opin­ion was writ­ten by Jus­tice Alito, in which Jus­tices Stevens, Kennedy, Souter, Gins­burg, and Breyer joined. Jus­tices Roberts, Scalia, and Thomas dis­sented, with dis­sent­ing opin­ions being writ­ten by Jus­tices Roberts and Thomas.

The Gap in the Fed­eral Employee Sec­tion of the ADEA

This was the prob­lem under the ADEA: The ADEA’s main sec­tion, in pro­hibit­ing dis­crim­i­na­tion against employ­ees 40 and older, only deals with pri­vate indus­try employ­ees and state gov­ern­ment employ­ees. I will call this sec­tion of the ADEA, the “pri­vate and state employee sections”.

Con­tinue read­ing Supreme Court “fills in the blank” to rec­og­nize retal­i­a­tion claims for fed­eral employ­ees under ADEA; Gomez-Perez v. Pot­ter, 2008

US Supreme Court broadens scope of permissible evidence for proving discrimination; Sprint/United Management v. Mendelsohn; 2/26/08

US Supreme Court Feb­ru­ary 26, 2008: The United States Supreme Court handed down its opin­ion in Sprint/United Man­age­ment Co. v. Mendel­sohn, 128 S. Ct. 1140 (2008) (Find­Law site opin­ion). The issue in this fed­eral age dis­crim­i­na­tion case (ADEA) was whether the plain­tiff could present evi­dence to the jury about other alleged older dis­crim­i­na­tion vic­tims, where the deci­sion made to ter­mi­nate the other indi­vid­u­als was not made by the same decision-maker that ter­mi­nated the plaintiff.

The employer (Sprint) con­tended that evi­dence of other alleged age dis­crim­i­na­tion vic­tims was not admis­si­ble where the decision-makers for those other vic­tims were dif­fer­ent from the decision-makers who took action against the plaintiff.

The Supreme Court rejected the employer’s argu­ment and said that the evi­dence of other vic­tims might be admis­si­ble, even if dif­fer­ent decision-makers were involved. The trial court should con­duct a “bal­anc­ing test” for admis­si­bil­ity of dis­crim­i­na­tion against other employ­ees by dif­fer­ent super­vi­sors, where the rel­e­vance of the other employ­ees’ sit­u­a­tion is bal­anced against unfair prej­u­dice to the employer.

US Supreme Court rules pay claims must be filed shortly after discriminatory decision; Ledbetter v Goodyear, 5/29/07

May 29, 2007: In Led­bet­ter v. Goodyear Tire & Rub­ber Com­pany, 550 U.S. 618, 128 S. Ct. 2162 (2007) (Find­Law site opin­ion), the United States Supreme Court, in a 5–4 deci­sion, issued an impor­tant deci­sion in a sex dis­crim­i­na­tion case under Title VII of the Civil Rights Act of 1964, which sub­stan­tially lim­ited the time period avail­able to assert a claim for pay dis­crim­i­na­tion. The Supreme Court affirmed the deci­sion of the Eleventh Cir­cuit in Led­bet­ter v. Goodyear Tire and Rub­ber Com­pany, Inc., 421 F.3d 1169 (11th Cir. 2005).

Ledbetter’s Claims of Sex Dis­crim­i­na­tion and Lower Pay, and the Trial Result

LillyLedbetter Led­bet­ter filed a charge of sex dis­crim­i­na­tion with the EEOC in 1998 and then later in the year retired. She claimed that, years ear­lier in her career at Goodyear, male super­vi­sors gave her bad per­for­mance reviews com­pared to what men received. She claimed that Goodyear awarded raises based on those per­for­mance reviews, so that her pay raises were reduced as a result of the dis­crim­i­na­tory per­for­mance reviews.

Led­bet­ter went to trial and per­suaded the jury that the per­for­mance reviews, years before she filed her EEOC charge, were dis­crim­i­na­tory based on her sex, and the jury found her rights had been vio­lated and awarded her dam­ages based on her lower pay­checks through­out her career. The trial judge entered a “judg­ment” in Ledbetter’s favor based on the jury’s ver­dict. So Led­bet­ter won at trial on her sex dis­crim­i­na­tion claim under Title VII. The Eleventh Cir­cuit Court of Appeals threw out the jury ver­dict and trial court judg­ment for Led­bet­ter, and entered a judg­ment in favor of Goodyear, based on her fail­ure to file her EEOC charge within 180 days of when the per­for­mance reviews had been con­ducted. The United States Supreme Court affirmed, mean­ing that Goodyear won.

Con­tinue read­ing US Supreme Court rules pay claims must be filed shortly after dis­crim­i­na­tory deci­sion; Led­bet­ter v Goodyear, 5/29/07

US Supreme Court Makes it Easier to Prove Retaliation Claims, in Burlington Northern v. White, 2006

June 22, 2006: In Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), the US Supreme Court sub­stan­tially broad­ened the abil­ity of employ­ees to file retal­i­a­tion claims under Title VII of the Civil Rights Act of 1964. It was a unan­i­mous (9–0) decision.

US Supreme Court The Supreme Court broad­ened retal­i­a­tion claims in 2 ways:

First: Retal­ia­tory con­duct is not lim­ited to employer’s action at the work­place, and it is not lim­ited to action taken while the plain­tiff is still work­ing for the employer.

Sec­ond: Action by the employer may vio­late the anti-retaliation pro­vi­sion even if it does not cause a tan­gi­ble loss, such as pay, for the plain­tiff. The con­duct may vio­late the law if it is “mate­ri­ally adverse” (as opposed to “triv­ial”) to the employee, and might dis­suade a “rea­son­able worker” from “mak­ing or sup­port­ing a charge of dis­crim­i­na­tion”. So, for exam­ple, trans­fers to dif­fer­ent posi­tions, even though they involve no loss in pay or ben­e­fits or pro­mo­tional oppor­tu­ni­ties, might con­sti­tute unlaw­ful action because, if the trans­fer is to what a rea­son­able worker would view as a less attrac­tive job, that might dis­suade a rea­son­able worker from com­plain­ing of discrimination.