The Supreme Court of the United States recently issued Staub v. Proctor Hospital. This decision adhered to a “cat’s paw” theory of employer liability for discrimination i.e., the Court found that employers would be subject to liability for discrimination “where lower-level supervisors with discriminatory motives influence, but do not make, adverse employment decisions made by higher-level managers.” (http://www.stoelrivesworldofemployment.com/2011/03/articles/supreme-court/supreme-court-upholds-cats-paw-theory-in-employment-discrimination-cases/) This decision is expected to make it more difficult for employers to resolve discrimination cases through motions for summary judgment.
Posts Tagged ‘employee’
Here are three simple things a small business can do to help avoid legal problems:
2. Employee Guidelines. Employee and employment-related lawsuits are probably the most common type of litigation small businesses encounter today. Businesses can begin to protect themselves by developing and adhering to guidelines set forth in employee handbooks. Handbooks might, for example, spell out vacation and paid time off policies, lunch periods, and how confidential and proprietary information is to be handled and secured.
3. Surround Yourself With And Then Rely On A Good Team. Your law firm and your accountant can help guide you through the steps necessary to protecting yourself and getting your business on the road to success. Interview lawyers and accountants and get recommendations from others to ensure that you are surrounded by a good team. Once you have your team in place, use them. When a problem or issue arises, call your team and get their advice. No matter the economy, an ounce of prevention is still worth a pound of cure.
After about 10 years of litigation, the procedural question about class certification in Dukes v. Wal-Mart should soon be resolved by the US Supreme Court. The Dukes case is a huge class action case – the class would be about 1.6 million women who worked for Wal-Mart at any time since December 26, 1998.
“The case started in 2000, when a 54-year-old Wal-Mart worker in California named Betty Dukes filed a sex discrimination claim against her employer. Dukes claims that, despite six years of hard work and excellent performance reviews, she was denied the training she needed to advance to a higher, salaried position. Wal-Mart’s position is that Dukes clashed with a female Wal-Mart supervisor and was disciplined for admittedly returning late from lunch breaks.” (http://tinyurl.com/2vylt5z)
For more on this case, see law.com (http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202475773329)
Employers in Florida may, generally speaking, fire an employee for any legal reason. Unless there is an employment contract between the employer and employee which governs their relationship and specifies how or under what circumstances an employee might be terminated, Florida employers are generally free to maintain their work force as they deem best.
Thus, the quick termination of the University of Alabama staffer who played the songs “Take the Money and Run” and “Son of a Preacher Man” during the “Iron Bowl” in an attempt to ruffle Auburn quarterback Cam Newton was not surprising. According to the NY Daily News (http://www.nydailynews.com/sports/college/2010/11/30/2010-11-30_alabama_fires_employee_over_song_choices_during_football_game_against_cam_newton.html), the Crimson Tide staffer was terminated because he “deviated from the script that had been approved for the game with Auburn.”
Of course, an employer does not have carte blanche when it comes to employee firings. It is, for example, illegal to terminate an employee based upon discrimination. An employer may not terminate an employee because of race, gender, national origin, disability, religion, or age, as well as because someone is pregnant. For another example, it is illegal to terminate an employee based upon retaliation. Employers may not fire employees who assert their rights under state and federal anti-discrimination laws.
Please give Kurt Lee a call if you have any employment law questions, 941.364.2447.
By: Kurt E. Lee, Board Certified Business Litigation Lawyer
Last year, the United States Supreme Court published Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009), and established a new standard of proof for federal Age Discrimination in Employment Act (“ADEA”) claims. The Court held that proof that age was a “motivating factor” for an adverse employment action was insufficient and that plaintiffs must meet the more stringent “but for” standard of proof. Stated another way, the Court held that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” The Court also rejected the idea that the burden of persuasion shifted to employers to prove that it would have made the same decision regardless of the plaintiff’s age. In short, the Gross decision may make it more difficult for plaintiffs to prove ADEA age discrimination claims.
Although the law has changed, it appears that the Supreme Court’s ruling has had little practical effect. A writer in “Corporate Counsel” recently observed that plaintiffs having evidence sufficient to defeat summary judgment on an employer’s defense that age was, if any factor, only one of the factors which went into the adverse employment decision, usually have sufficient evidence to prove “but for” causation. (See http://bit.ly/bMX32h) Hence, the “Corporate Counsel” advice to probe a plaintiff’s proof through discovery to determine whether there is evidence of performance deficiencies or other factors which were considered by decision makers. (Id.)
Of course, no employer wants to engage in discovery or even be involved in ADEA litigation. Thus, employers subject to the requirements of the ADEA should actively do their best to avoid litigation. Employers should not refuse to hire, terminate, or otherwise discriminate against persons who are 40 years old or older, solely on the basis of age (or on the basis of sex or race, for that matter). For example, if economic forces are causing an employer to make lay-offs, an employer should not lay-off older workers simply because of their age. Employers should also consider whether apparently neutral employment policies and practices have a disparate impact upon older employees.
Once again, Mom’s advice is right on – an ounce of prevention is worth a pound of cure!