As I was flipping through the latest edition of ABA's Litigation News (Volume 36, Number 4, Summer 2011) I came across an article, "High Court Complicates Corporate Decision Making" written by Teresa R. Bult that very briefly reviewed the 2011 Supreme Court case Staub v. Proctor Hosp. Intrigued by the case, I decided to review it and then compare it to President Obama's push for firms to hire vets.
Staub is an employment discrimination case brought under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). Justice Scalia, who wrote the majority opinion, reminds us that USERRA "provides in relevant part" that:
"A person who is a member of . . . or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, . . . or obligation." 38 U. S. C. §4311(a)
Bult synopsizes the facts in Staub by stating that "[t]he plaintiff...a member of the military, was fired for failing to remain at his work station after receiving prior disciplinary action for the same offense." More specifically, the plaintiff/petitioner was Vincent Staub an angiography technician for defendant/respondent Proctor Hospital. While employed by Proctor, Staub was a member of the U.S. Army Reserve and was required to attend drill one weekend per month and train full time for two to three weeks a year. Staub's supervisors were hostile to his military obligations and one of them issued a "Corrective Action" when he purportedly violated a company rule. When Staub purportedly violated the company rule a second time he was fired. Staub argued that the original "Corrective Action" that was issued by his supervisors was fabricated "out of hostility toward his military obligations." Thus his cause of action under USERRA.
Later in the opinion, Scalia cites another important section of USERRA which states:
“An employer shall be considered to have engaged in actions prohibited . . . under subsection (a), if the person’s membership . . . is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” §4311(c).
The Court wrestled with the meaning of the phrase "motivating factor" under USERRA and ultimately held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."
While Staub arguably gives employers better guidance how to properly terminate military members' employment, President Obama, in his effort to aid economic recovery, is pushing for firms to hire "the '9/11 generation' of veterans." Obama proposed issuing "tax credits for companies that hire returning service members" so as to encourage the employers that have balked at hiring veterans, due to a fear that these veterans will be called back to duty or that they suffer from PTSD, to change their mind. Obama challenged the private sector to hire 100,000 unemployed post-9/11 veterans or their spouses by 2013.
Bult argues that Staub does not "answer the question of whether and how an employer may insulate a decision" to terminate a military member from a prior discriminatory intent. Bult believes that Staub makes it difficult "for an employer to figure out how they can possibly conduct a thorough enough investigation to avoid liability in a discriminatory case."
The most important thing, from an employer's perspective, very well may be to realize that the risk of a discriminatory lawsuit from a military member upon termination may not be reduced to zero. Heightened and more stringent procedures for termination may yet need to be explored and implemented to test the uncharted waters of employee discrimination based on military participation. At the very least the lessons of Staub teach that a supervisor ought to thoroughly investigate any allegation made by the employee that the reason for firing was "fabricated" and should be able to provide two substantiated reasons why the employee, who happens to be a military member, is being fired, both of which must not be military related whatsoever.
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