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Justice Scalia, writing for the Supreme Court, began by noting that employment discrimination claims are a type of federal tort.  Thus, general tort principles apply:

And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only "some direct relation between the injury asserted and the injurious conduct alleged," and excludes only those "link[s]that are too remote, purely contingent, or indirect." Hemi Group, LLC v. City of New York, 559 U. S. 1, ___ (2010) (slip op., at 9) (internal quotation marks omitted).2  We do not think that the ultimate decisionmaker’s exercise of judgment automatically renders the link to the supervisor’s bias "remote" or "purely contingent." The decisionmaker’s exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes. See Sosa v. Alvarez-Machain, 542 U. S. 692, 704 (2004). Nor can the ultimate decisionmaker’s judgment be deemed a superseding cause of the harm. A cause can be thought "superseding" only if it is a "cause of independent origin that was not foreseeable." Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 837 (1996) (internal quotation marks omitted).

This decision will do away with all kinds of employer shenanigans in which they have adverse actions decided by some removed manager, or a committee, or an independent investigation. If an angry supervisor got the ball rolling, and intended the final outcome, then the employer will be liable for what that supervisor "proximately caused."

Congratulations to Staub's attorney, Eric Schnapper, of Seattle, Washington.

The Hospital's attorney, Roy Davis, argued that since there was only one hospital administrator who made the decision to fire Staub, the hospital should not be liable unless Staub can prove that this administrator was biased. Staub's attorney, Eric Schnapper, noted that USERRA only requires Staub to prove that discrimination was a "motivating factor" in the adverse action. He argued that once an illegal motivating factor is shown, the employer then has to prove that it would have fired Staub anyway, even without the unlawful motive. He disagreed with the Seventh Circuit's new rule, that a decision maker is off the hook if he or she does an independent investigation.  In yesterday's argument, Justice Alito questioned Schnapper about what evidence would be required to show a "motivating factor." At page 11 of the transcript, Justice Alito said, "the natural reading of that is that it looks at the motivation of the person who actually makes the decision to discharge." He added, "That's a very unattractive rule. But the rule that you have suggested is also a very unattractive rule, one that I doubt the Congress intended to adopt. Is there no reasonable middle position here?"

At pages 8-9, Justice Alito asked Schnapper about whether a decision maker's independent investigation would absolve the employer of liability. Schnapper started to answer that if a biased person contributed to the decision, then the burden would shift to the employer that it made no difference in the outcome.  But Schnapper did not finish that comment as Justice Alito interrupted him to emphasize a hypothetical situation in which the decision maker conducts a thorough independent investigation of the grounds for discharge. Schnapper noted that the statute has no special rule for investigations.  Justice Kennedy said, "that's a sweeping rule." He went on to suggest that employers will need to get insurance since they will be liable for the illegal motives of subordinates even when top managers are unaware of those motives.

On pages 12-13, Justice Sotomayor asked if the "motivating factor" has to be "substantial." Schnapper said no. Congress was aware that the Supreme Court had considered a variety of standards in Price Waterhouse v. Hopkins, 490 US 228 (1989), and Congress chose the lowest threshold (motivating factor) without using the word "substantial." At pp. 16-17, Assistant Solicitor General Eric Miller said that a "motivating factor" cannot be trivial or de minimus.

At pages 14-15, Justice Scalia asked Schnapper if he would hold employer's liable where the decision maker was not "willful" in violating the law. Schnapper explained that where several people contributed to the decision, the willfulness of any one of them would shift the burden to the employer to prove that it would have fired the employee even without that illegal motive.

Roy Davis argued that employers should not be held liable unless the person with the illegal motive "dominated" the decision maker.  This is the requirement for a "cat's paw."  At pages 42-43, Justice Kennedy asked him, "why isn't this just governed by the standard principles of tort for concurrent actors?" Justice Kennedy explained that this rule is, "whether or not the wrongful actor made a significant contribution. That's -- that's the end of it."

As Justice Elena Kagan submitted an earlier brief in this case while she served as Solicitor General, she did not participate in the oral argument. Briefs in this case are available here.

Vincent Staub worked at Proctor Hospital in central Illinois as an angiography technician.  He was also a member of the U.S. Army Reserves. The department's second in command, Janice Mulally, was openly hostile to Staub for the inconvenience of scheduling technicians around his reserve duties. She assigned him extra shifts to work as "payback ... for everyone else having to bend over backwards to cover [his] schedule for the Reserves." Michael Korenchuk, the department head, was also critical of Staub’s military duty obligations. He called it “a b[u]nch of smoking and joking” and a “waste of taxpayers' money.” Mulally issued a warning to Staub ordering him to report to a supervisor whenever he left his work station. A few weeks later when Staub was at lunch, Korenchuk reported to the VP of Human Resources, Linda Buck, that Staub was not at his work station. Buck confirmed that the warning was in Staub's personnel file and fired him. Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA), 38 U.S.C. 4301.

USERRA has an enhanced standard for proving retaliation against an employee's military reserve duties. Similar to the standard used in modern whistleblower laws, USERRA required Staub to prove that his military service was a "motivating factor" in the adverse action. 38 U.S.C. 4311(c)(1). If his succeeded, then the employer would have to convince the jury that it would have fired him anyway even if he had no military status.

The trial court instructed the jury that “[a]nimosity of a co-worker toward the [Staub] on the basis of [Staub’s] military status as a motivating factor may not be attributed to [the employer] unless that co-worker exercised such singular influence over the decision-maker that the coworker was basically the real decision maker.” The court also instructed that “[i]f the decision maker is not wholly dependent on a single source of information but instead conducts its own investigation into the facts * * * , [the employer] is not liable for a non-decision maker’s submission of misinformation or selectively chosen information or failure to provide relevant information to the decision maker.”

The jury found in favor of Staub and awarded $57,640 in damages. The hospital appealed and got the Seventh Circuit to reverse. The court emphasized that liability under the cat’s paw theory requires
“a blind reliance, the stuff of ‘singular influence.’” The Court of Appeals said that since Staub could not prove that Mulally had such "singular influence" over Buck, the judge should never have allowed the jury to hear what Mulally said about Staub's military service. Without this evidence, the Court of Appeals said the employer had to win. This appellate decision is Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. 2009).

Staub appealed to the U.S. Supreme Court. Last November, the Court asked the Solicitor General to submit a brief.  This is traditionally an indication that the Court is interested in the case.  Now that the Solicitor General has filed a brief asking the Court to accept the case, that bodes even better for Vincent Staub.

The Solicitor General notes that the Seventh Circuit's"singular influence" requirement is inconsistent with USERRA's "motivating factor" requirement. It undermines the enforcement of USERRA,
frustrating the congressional objective of “encourag[ing] noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.” 38 U.S.C. 4301(a)(2). This argument connects the outcome to the remedial purpose of the law.  This is the type of argument that has been absent from the Solicitor's office for too long, and is a breath of fresh air to read.

The Solicitor General's brief also cites the court to ten other appellate decisions that have allowed "cat's paw" liability to attach whenever the biased manager merely "influenced" the adverse decision. Only the Fourth Circuit has agreed with the Seventh Circuit's strict requirements. Hopefully, this outstanding brief will influence the Supreme Court to accept Staub's case and reinstate the jury's verdict. With this one swipe, the Supreme Court can put asunder this latest employer tactic to evade liability.

Staub's Petition for Writ of Certiorari

Solicitor General's Amicus Brief of the United States