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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