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Staub v. Proctor Hospital Amicus Brief

2010-11 preview of the U.S. Supreme Court

This case provides the Court with an opportunity to ensure that Congress’s intent in enacting USERRA will be implemented, and that an employer can be held liable for the bias of an official, even if that official did not make the final decision, if the plaintiff proves that the bias was a motivating factor for an adverse employment practice.

Under USERRA, a plaintiff establishes an unlawful employment practice by demonstrating that an individual’s military service was a “motivating factor” for an adverse employment practice, even though other factors also motivated the action. Amici ask the Court to hold that an employer can be held liable under the express language of USERRA for the bias of a supervisor, even when the ultimate decision-maker harbored no discriminatory motive toward the affected employee. An employer can—and should—be held liable whenever unlawful animus is a “motivating factor” in an employment decision, provided that applicable agency requirements are met.

Clarifying this principle will further USERRA’s primary purpose of encouraging military service by protecting service members from employment discrimination. For, in order for the “motivating factor” language to be meaningful, USERRA must provide for employer liability for the biased actions of employees.

Well-established agency principles impute to an employer the actions of an employee committed within the scope of employment, or those that are “aided by” the agency relationship. Accordingly, an employer may be held liable for acts committed by biased supervisors if such actions result in an adverse employment practice against an employee in a protected class. This finding of agency does not hinge on whether the biased supervisor is the ultimate decision-maker.

USERRA also gives employers a defense. Even if the jury concludes that a person’s individual military service was a motivating factor, an employer still avoids liability under the statute if the employer can prove that it would have taken the same action “in the absence of” the employee’s military service, which is an issue of fact that must be determined on a case-by-case basis.

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