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39 Lab. & Emp. L. 1 (2010-2011)

handle is hein.journals/laboemplo39 and id is 1 raw text is: loymen FALL 2010 VOLUME 39, NUMBER 1 Section of Labor and Employment Law American Bar Association /A Section of Labor and Employment Law Court to Addre s WaI-M P a an r By Mark Risk Employment-related cases are often among the Supreme Court's lineup of controversial cases, and the current term is no exception. But Supreme Court observers are paying special attention this year, as the Court now has two justices appointed by President Barack Obama and, for the first time in American history, three women justices, with Associate Justice Elena Kagan joining Ruth Bader Ginsburg and Sonia Sotomayor. Many observers say the present chemistry on the Court, however, has not changed, as there remain five conservative justices-Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Antonin Scalia, and as the swing vote, Anthony Kennedy. Regardless, the 2010-11 term will be highly relevant to employ- ment practitioners, with several controversial cases expected to be decided. The Court has just agreed to hear Dukes v. Wal-Mart Stores, Inc., in which an en banc Ninth Circuit has upheld certification of a class of about 1.6 million women in a gender discrimination action, the largest employment-discrimi- nation class in history. Also at center stage is Staub v. Proctor Hospital, which will address the cat's paw doctrine-whether an employer may be found liable where a neutral decision maker terminates an employee based on tainted information provided by a subordinate supervisor who was al- legedly motivated by discriminatory animus. Originating from the French poet La Fontaine's fable The Mon- key and the Cat, a cat's paw refers to someone used by another to ac- complish his own purposes. The Seventh Circuit found that, in these circumstances, the em- ployer is ordinarily absolved from liability for injuries caused by its supervisors, so long as the last of- ficial in the decision-making chain had no discriminatory animus. The Seventh Circuit explained that liability can attach only when the supervisor has singular influ- ence over the decision maker and uses that influence to cause the adverse employment action. In other words, the supervisor must possess so much influence over the final decision maker that the supervisor is the true function- al decision maker and the final de- cision maker is nothing more than the supervisor's cat's paw. The employee in Staub, an army reservist who brought a claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), argued the Seventh Circuit erred in not apply- ing traditional agency principles. The Staub case is interesting because the issue of subordinate liability has obviously been intrigu- ing to the Court for several years now, said Professor Roberto Cor- rada of the University of Denver Sturm College of Law. Most recent- ly, the Court was set to decide the cat's paw liability issue in 2007 in EEOC v. BCI Coca-Cola Bottling Co., but the parties settled the case be- fore oral argument was scheduled. Whether the Staub holding is drawn narrowly to apply only to USERRA claims or contains broad- er dictum that could apply to other discrimination statutes, the case should finally give a clue about the Court's view of the breadth of employer liability in discrimination cases, said Corrada. Most circuits have gener- ally upheld subordinate liability without requiring a stiff showing that the subordinate actually con- trolled the decision maker's ac- tions, he added. If the Court goes the opposite way, requiring the decision maker to be the subordi- nate's cat's paw, employers will have much less incentive to make sure a decision maker acts truly independently. Consistent with the direction it has been taking in recent years, the Supreme Court this term will also decide another case regarding the enforceability of arbitration agreements-AT&TMobility v. Concepcion. This case, which arises in the consumer arbitration con- text, presents the issue whether the Federal Arbitration Act (FAA) continued on page 10

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