USERRA Ruling Validates Cat's Paw Theory of Discrimination

Tens of thousands of men and women who served in Iraq and Afghanistan are returning to the U.S. this year. Many will return to jobs they left when their reserve units were called up or when they enlisted in the Armed Services, while others will seek new employment opportunities. A March Supreme Court decision suggests that some managers and supervisors may not realize the protections the Uniformed Services Employment and Reemployment Rights Act (USERRA) affords these veterans.

In Staub v. Proctor Hospital, a unanimous Supreme Court held that an employer can be liable for employment discrimination under USERRA based on the discriminatory animus of a supervisor who expressed anti-military sentiments and then influenced a higher level decision maker to fire a member of the U.S. Army Reserve.

Staub's Story

The case grew out of the firing of Vincent Staub, a member of the Army Reserve and an angiography technician at Proctor Hospital in Peoria, Ill. Staub alleged that beginning in 2000, his immediate supervisor, Janice Mulally, demonstrated hostility to his military service by scheduling him to work on the weekend, which conflicted with his training schedule. She also allegedly scheduled him to work extra shifts so he could pay back the department "for everyone else having to bend over backwards to cover" for him during his military drills. Staub reported his conflict with Mulally to Michael Korenchuk, the department head, who allegedly called reserve duty "a waste of taxpayers' money."

As a precaution, experts advise decision makers to take an extra step when basing decisions on an employee's prior evaluations and disciplinary actions to assure those did not result from a discriminatory motive.

Proctor probably requires that when someone hands you a negative evaluation, you need an extra layer of investigation before you actually make a decision," says Johnson. "You can no longer rubber-stamp decision making in an employment context."

Senior Editor

Mary Swanton

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