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Discrimination Liability Expands

This week, the United States Supreme Court expanded employers' liability for discrimination.

Now, even if a person makes an adverse employment decision (such as demotion or termination) without discrimination, an employer can still be liable. That is the Court's holding in Staub v. Proctor Hospital. You can prevent a similar claim.

A hospital employee was a member of the Army reserve. Two of his supervisors, however, were hostile to his military commitment. They made derogatory comments, scheduled him for additional shifts without notice and filed false disciplinary warnings in his file.

The hospital's HR vice president relied on the supervisors' accusations and fired the employee. The terminated reservist then sued under the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA), a federal discrimination statute.

Although the HR vice president may not have discriminated against the employee, he relied on accusations made by those that did. The Court reasoned, "[t]he 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 decision." 

The trial court's jury award of $57,640 in damages was upheld. The employer also incurred seven years worth of attorney fees at the trial court, Seventh Circuit Court of Appeals and United States Supreme Court. It is likely the employer will be ordered to pay for the plaintiff's seven years worth of attorney fees as well.


Lessons Learned

There are a number of lessons to be learned from Proctor Hospital's mistakes.

Supervise the Supervisors. Things probably would never have gotten to where they did if the supervisors were properly monitored. Supervisors are the eyes, ears, arms and legs of your organization. Anything they see, hear, say, do or fail to do is as if it was seen, heard, said or done by the head of the organization. Supervise them accordingly.

Train. These supervisors no doubt cost their employer many hundreds of thousands of dollars. Not to mention the public relations damage caused by being perceived as opposed to our men and women in uniform. Supervisors must be trained on their responsibilities under the ever-growing requirements imposed by state and federal employment laws.

Ask Why. When supervisors have problems with an employee, ask why. Ask the supervisor why warnings were issued? Ask the employee why is there a problem?

Make it Easy to Report. Your employee handbook should have a list of matters employees should report. You should also have a list of alternate people to whom they can make reports. You certainly don't want employees to be forced to report to the person that is causing the problem. By making it easy to report, you can get early warnings of problems long before a lawsuit is filed. Also, if they do not follow your reporting requirements, it can be harder for an employee to sue.

Investigate. Avoid making summary terminations. If this HR vice president had simply let the employee know of the accusations against him and asked for his side of the story, HR would have learned they had problems.

Get Help. Even if an employee alleges discrimination, retaliation, harassment or any one of a number of other employment claims, it doesn't mean they can't be terminated for improper conduct. But you must take the right steps. Consult a lawyer experienced in employment matters for assistance.

Conduct Exit Interviews. If anyone from the hospital's HR department conducted an interview with the military reservist, they would have likely gotten an earful. This simple act may have also saved the hospital a small fortune. Interview employees on their way out the door. Ask what they liked best and what they liked least. Attempt to do this for all exiting employees, regardless of reason for termination.

Go to school on Proctor Hospital’s mistakes so that you can avoid similar costly lessons.

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