The latest from Work Matters
| Mrs. Palsgraf and the cat's-paw doctrine |
| Remember being a 1L, studying about Mrs. Palsgraf and proximate cause in torts and the fruit of the poisonous tree in criminal procedure? I never thought I would see them again, but I was wrong. The ideas popped up the SCOTUS decision in Staub v. Proctor Hospital . The issue: Is an employer on the hook for discrimination if the person who fires the employee is pure of heart but relies on biased actions (such as a write up) by a subordinate? The answer: Yes. The court reasoned that tort law governed the question, and that if a biased supervisor's action was a proximate cause of the adverse employment action, then the employer is on the hook. And proximate cause only requires some link between the biased act and the adverse employment action. So, the biased supervisor's action does not need to be the proximate cause, just a cause. As Justice Antonin Scalia pointed out, "[I]t is common for injuries to have multiple proximate causes." Or to put it in crim-pro terms, the adverse employment action taken by the ultimate decision-maker is a fruit of a poisonous tree. What about the employer's argument that the ultimate decision-maker's independent investigation into an employee's accusation of bias (and rejection of same) insulates the employer from liability? Scalia's slashing response:"Nor do we think the independent investigation somehow relieves the employer of 'fault.' The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment action." What to do? When an employee alleges that discrimination caused an adverse employment action, do not circle the wagons. Look into it with an open mind. In litigation, ask the ultimate decision-maker whether she would have made the same decision regardless of the biased action and why. Run a risk assessment on an adverse employment action before implementing it. Is the action consistent with previous decisions in similar circumstances? Is there any reason the supervisor would make up the reason for the adverse action? Finally, train supervisors to be fair and consistent and to listen to employees. Make no mistake, this decision is a big victory for employees, but it does not leave employers helpless. |
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