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by M. McClure on Mar 22, 2011 at 12:07 PM

USERRA is the statute that protects members of the military from discrimination in employment because of their service.  Experts estimate that there are 8,000 new USERRA claims filed every year, with the Department of Labor adding 1,389 cases in 2008 alone.  On March 1st, 2011, the Supreme Court issued its first ever decision on the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). 

In Staub v. Proctor Hospital, the Court held unanimously for an employee that was a member of the Army Reserves.   The employee’s immediate supervisor (Malally), and Malally’s supervisor (Korenchuk) were, in the Courts words, “hostile to [the employee’s] military obligations.” The employee was fired by the hospital's Vice President of Human Resources (Buck), who did not have any anti-military prejudices, but relied on the advice of the two supervisors.  The employee then sued Proctor for violating his USERRA rights under the “cat’s paw” theory of liability.
"Cat’s paw” liability occurs when a decision maker is influenced by others that have discriminatory motives.  In this case, Malally was openly critical of the reservist's military commitments, telling the employee’s coworkers that his military service was a strain on the department, and he tried recruit at least one coworker to “help get rid of” the employee.   Korenchuk knew of Malally’s intentions to get rid of the employee, and he had personally been critical of the employee’s military service.  Finally, Buck relied on Mulally's statements in deciding to discharge the employee. 

At trial, the jury awarded the employee $57,640 in damages.  On appeal the Seventh Circuit reversed because Mulally and Korenchuk did not exercise a singular influence over the decision maker.  The Supreme Court disagreed.  First, the Court stated that USERRA only requires military service to be a motivating factor in the employment decision.  The Court went on to say that basic tort and agency principles apply to USERRA claims, rejecting Proctor’s argument that an employer should not be liable unless the de facto decision maker is motivated by antimilitary animus.  In short, Mulally and Korenchuk, acting in their official capacities, violated the employee’s USERRA rights, and Buck relied on their allegations in her decision to fire the employee, thereby violating the employee’s USERRA rights.

Bottom line:  Employees who also serve in the military are protected for their time away from work for drills and for active duty. Employers who base employment decisions on this military service will likely find themselves defending those decisions, and this recent Supreme Court case will make those cases just a little easier for plaintiffs  

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