Showing posts with label Justice Scalia. Show all posts
More than one Cat's paw
Charles Sullivan at Workplace Prof Blog has an excellent post on why Staub v. Proctor Hospital may not be so plaintiff's friendly at all. We agree as our previous post suggests.
Cat's Paw approved by SCOTUS
The Supreme Court has decided that the "cat's paw" theory is applicable in at least some employment cases. The theory relates to the situation where a decision maker without discriminatory animus is affected by the advice of others who have discriminatory animus. The case involved allegations of discrimination against an army reservist who claimed his immediate supervisor fabricated a disciplinary warning due to hostility to his military obligations. The employer's vice president of human resources received a report on the disciplinary warning, reviewed the employee's personnel file and terminated the employee's employment. More after the jump
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), forbids an employer to deny “employment, reemployment, retention in employment, promotion, or any benefit of employment” based on a person’s “membership” in or “obligation to perform service in a uniformed service,” 38 U. S. C. §4311(a), and provides that liability is established “if the person’s membership . . . is a motivating factor in the employer’s action,” §4311(c).
Although specifically limited to USERA, the court expressly notes the similar "motivating factor" statutory language in Title VII. Justice Scalia's opinion then discusses intentional torts, proximate cause and agency before concluding:
We therefore hold 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.
It would seem the cat's paw theory likely will be found appropriate in employment discrimination contexts where "motivating factor" is sufficient to establish liability. But it would not necessarily be appropriate in situations like Gross v. FBL Financial Services, Inc. which required "but for" causation.
Justice Scalia's discussion of tort law, proximate cause and agency principles drew a dissent from Justices Alito and Thomas as being unnecessary. But Justice Scalia's discussion provides ample suggestions for future litigants to discuss liability in terms of intentional tort and agency concepts which provide fertile ground for creative litigants.
Oy With This Justice Scalia!
I don't think Justice Scalia has visited too many Jewish cemeteries:
Isn't Justice Scalia a devout Catholic? Yet he is outraged that the central symbol of his faith could somehow be construed as religious?"The cross doesn't honor non-Christians who fought in the war?" Scalia asks, stunned.
"A cross is the predominant symbol of Christianity, and it signifies that Jesus is the son of God and died to redeem mankind for our sins," replies Eliasberg, whose father and grandfather are both Jewish war veterans.
"It's erected as a war memorial!" replies Scalia. "I assume it is erected in honor of all of the war dead. The cross is the most common symbol of ... of ... of the resting place of the dead."
Eliasberg dares to correct him: "The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."
"I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead," thunders Scalia. "I think that's an outrageous conclusion!"
Far less outrageous is the conclusion that religious symbols are not religious.
That's faith for you -- btw, these cases are almost always bad news.
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