Ms. Palsgraf. The decisionmaker’s exercise of judgment is not necessarily a superseding cause. It only supersedes the biased motive if it has an “independent origin that was not foreseeable.”43 Since Proctor Hospital’s decisionmaker decided to fire Staub based on completely bogus allegations from the biased supervisors, her decision cannot be said to be independent of the actions and motives of those biased agents.44 Justice Alito thinks that the employer is absolved if its decisionmaker undertakes an “independent investigation.”45 But, Scalia says that such a rule would create a situation where discrimination could never be challenged. An employer could simply pick an executioner to make all employment decisions, isolate her from any supervisor, have her review the personnel file before making a decision, and let the axe fall where it may.46 Instead, the majority opinion will hopefully induce employers to more carefully consider the scope and conclusions of their internal investigations. Bottom Line: If a supervisor/agent takes an action motivated by illegal bias and intends to cause an adverse employment action, and that action is a proximate cause of the ultimate employment action, then the employer is liable. Even if a decisionmaker conducts an “independent investigation” and rejects an employee’s allegation of discrimination, that does not wipe away the effect of the earlier discrimination. Conclusion No matter the side of the bar on which you practice, it is inspiring to see a lawyer perform at such a high level. Professor Eric Schnapper is on a roll.47 “Schnapper’s trio” ensures that more people and more situations are protected under these remedial laws. Much like the invigorated ADA shifts the focus away from coverage and toward causation,48 so too does this trio shift the focus toward the question that really matters: whether the plaintiff can prove that the employer violated the law.
Paul Harris is an associate at Butler & Harris, where he practices employment law. He can be reached by email at paul@butlerharris.com. Endnotes Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). 2. ERIC SCHNAPPER | UW SCHOOL OF LAW, http://www.law.washington.edu/directory/ profile.aspx?ID=155 (last visited Jan. 25, 2012). 3. Eric Schnapper, Curriculum Vitae (Dec. 11, 2011), http://www.law.washington.edu/ directory/CV/SchnapperEric.pdf 4. The National Law Journal, Appellate Lawyer of the Week: Eric Schnapper, University of Washington Law School, by Tony Mauro (Oct. 27, 2010) available at http://www.law. washington.edu/News/Articles/Appellate_ Lawyer_of_the_Week.pdf. 5. Id. 6. Thompson, 131 U.S. at 867. 7. Id. 8. Id. 9. Burlington Northern R.R. v. White, 548 U.S. 53 (2006). Yet another feather in Prof. Schnapper’s cap. 10. Thompson, 131 U.S. at 868. 11. There have been several such suits since Thompson. See Zamora v. City of Houston, 2011 WL 1834245 (5th Cir. May 12, 2011) (retaliation against son because of protected activity by father); EEOC v. Willamette Tree Wholesale, Inc., 2011 WL 886402 (D. Or. March 14, 2011) (retaliation against brother because of protected activity of sister); McGhee v. Healthcare Services Group, Inc., 2011 WL 818662 (N.D. Fla. March 2, 2011) (retaliation against husband because of protected activity by wife; employees worked at the same site for two different companies); Smith v.Vilsak, 2011 WL 1691007 (EEOC, April 25, 2011) (retaliation against husband because of protected activity by wife). 12. See id. 13. Id. at 868-69. 14. Id. at 869, quoting 42 U.S.C. § 2000e-5(f)(1). 15. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). 16. Id. 17. Id. at 870. 18. Id. at 869-70. 19. Id. at 870. 20. 131 U.S. 1325 (2011). 21. Id. at 1329-30. 22. Id. at 1330. 23. It was a bit ironic for Kasten to be punished for complaining about a potential FLSA violation since Saint-Gobain’s Code of Ethics “impos[es] upon every employee ‘the responsibility to report... suspected violations of... any applicable law of which he or she becomes aware.’” Id. at 1329. 24. Id. at 1329 (quoting 29 U.S.C. § 215(a)(3)). 25. Id. at 1330-32. 26. Id. at 1333. 27. See id. at 1333-34. 28. Id. at 1334. 29. Id. at 1334-35. 30. See 29 U.S.C. § 215(a)(3). 31. Kasten, 131 U.S. at 1336. 32. Scalia chides the majority for treating the FLSA like it is part of a “living U.S. Code.” Id. at 1339. 33. Id. at 1341. 1.
There currently is a circuit-split on whether complaints to a private employer are protected. Cf. Lambert v. Genesee Hosp., 10 F. 3d 46, 55 (2d Cir. 1993) (only complaints to the federal government are protected), with Hogan v. Echostar Satellite, LLC, 529 F. ed 617, 625 (5th Cir. 2008). 35. However, this “presumably does not include a complaint to Judge Judy.” Id. (Scalia, J. dissenting). 36. 38 U.S.C. §§ 4301, et. seq. 37. Id. at n.1. 38. 131 U.S. 1186 (2011). 39. Id. at 1192. 40. Id. (internal citation omitted). 41. Id. at 1189. 42. Id. at 1194. The opinion does not decide whether cat’s paw liability can be based on a co-worker’s motive rather than a supervisor’s. Regarding those who fall somewhere in between, if a person has sufficient authority or ability to take action against an employee, should it matter whether they are nominally labeled a “supervisor”? I think not, based on the references to agency law. Scalia refers to both “supervisors” and “agents.” The label given to the employee is less important than the authority he is given. 43. Id. at 1192 (internal citation omitted). 44. Id. 45. Id. at 1195. 46. See id. at 1192-93. 47. For a true appreciation of his talent, one must visit SCOTUS, the stellar blog for the high court, and read the Professor’s briefs. Find them at: http://www.scotusblog.com/case-files/cases/ staub-v-proctor-hospital/ (Staub); http://www. scotusblog.com/case-files/cases/thompson-vnorth-american-stainless/ (Thompson); http:// www.scotusblog.com/case-files/cases/kastenv-saint-gobain-performance-plastics-corp/ (Kasten). 48. “[I]t is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether the entities covered under the ADA have complied with their obligations.” ADA Amendments Act of 2008, Pub. L. 110-325, Section 2(b)(5), Sept. 25, 2008 (incorporated into the ADA by 42 U.S.C. § 12102(4)(B)). 34. Id.
Drawings by Art Lien “I started sketching the U.S. Supreme Court thirty-five years ago, back when Rehnquist wore sideburns and John Paul Stevens was the junior Justice. It’s been a wonderful privilege that I enjoy more and more every year... and I’m finally getting pretty good at it.” See more of Art’s work at www.courtartist.com Reproduced by permission
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